Buying private land with public highway rights

Bartoni79

Hi all,

I went to see some land that was being sold off at a very reasonable price (as the auction failed to reach the reserve) ; it was essentially a strip of land between 2 rows of ~30 houses each backing onto the land. It was being used as a "public highway" but it was more of a walkway through some some woodland/ undergrowth. My loose plan was to buy it at say 15k then offer a parcel ofland to each house for 8k - thereby making a profit. I rang the council and they said it had a few TPOS on it (problem #1) but interestingly the council tree guy said that even if I bought the land I would only own the subsoil and public highways would own the surface soil (problem #2) so essentially I couldn't do anything with it. Can someone explain how this can come about? The land was owned by a private individual and bought for more than double than the asking price of 15k, so assume they had learned of this issue. How can land be sold by an individual yet still be under control of the highways? The council man explained it was similar to owning the pavement outside your house whereby you might own it but can't do anything with it. Is this common?

any insights would be welcome..,

propertyrental

Yes. Very common. Land that is designated as public highway can only be used as..... a pubic highway.

Irrespective of ownership.

Bartoni79

Can it be ever be removed as a public highway say if it’s a corner of a road between houses which isn’t used as a highway?

propertyrental

If the highways Dept decide, then yes, but very unlikely.

Try asking them?

CSI_Yorkshire

Bartoni79 said:

some land that was being sold off at a very reasonable price (as the auction failed to reach the reserve) 

And now you know why.

If it was so easy to buy it for £15k and sell for £480k, you wouldn't be the first to have the idea.

Bartoni79 said:

Can it be ever be removed as a public highway say if it’s a corner of a road between houses which isn’t used as a highway?

Highways own all sorts of verges, utility strips, access areas etc.  They like having them and want to keep them.

Bartoni79

Yes! The legal pack was a nightmare to understand as it referred to maps which were no longer in play and the TPOS concerned me long before this highways issue.. 

user1977

Bartoni79 said:

Can it be ever be removed as a public highway say if it’s a corner of a road between houses which isn’t used as a highway?

Yes (look up "stopping-up orders") but generally those are only for situations such as the area being redeveloped or a road having been bypassed, not just because somebody has asked nicely. But where it does happen, if somebody owns the underlying land then they get normal use of it back.

FreeBear

Bartoni79 said: My loose plan was to buy it at say 15k then offer a parcel ofland to each house for 8k - thereby making a profit.

That would work if the houses actually wanted to buy the parcels of land. But if they can't utilise the land for their own purposes (i.e. fencing off to extend their gardens), it probably isn't worth £8K to them. Your loose plan sounds very much like a good way to throw £15K on a white elephant with zero profit at the end of the day.

ThisIsWeird

Can you see any possible use that the Highways Dept could make of this land, Bertoni? Is it a verge, or does it border a road, or could it provide access to an otherwise inaccessible area, for example? 

Perhaps also worth checking the deeds of an adjacent house to see if there's a RoW over it - that would significantly reduce the value to each potential homeowner.

Got to be worth a few enquiries. 

But, as said before, if it has such potential, most likely someone else would have exploited it before now. 

 It's interesting - keep us posted, please, if you chase this :-)

Bartoni79

In this instance it was basically woodland with a path through it and I would imagine it would have been unlikely that highways would relinquish rights to it. All the houses (legally or not) had gates opening onto it.

I bowed out of the closed bid process as the legals were pretty complicated to understand as the title plans and maps were all out of date; a solicitor would have needed at least a day to go into the references; there were TPOS galore on the land; and a current dispute with an adjacent house blaming subsidence on one of the TPOS. Funnily enough the legal pack/ auction house omitted this dispute.

Section62

"It was being used as a "public highway" but it was more of a walkway through some some woodland"

"Highway" includes footpaths, bridleways and BOATs, so even though it doesn't look like a road doesn't mean it isn't a highway that either the highway authority or local people value.  Getting a stopping up order for a footpath/bridleway/BOAT is typically harder than for a road, since it doesn't cost much for the highway authority to maintain them, and there are active lobby groups seeking to protect and enhance the public right of way network.

A length of road which doesn't go anywhere might be a candidate for stopping up if the adjacent landowners wanted to make it private, but footpaths/bridleways/BOATs primarily have a leisure function so even if the path doesn't go anywhere, it may be valued as a greenspace that people can ramble down and then back.

This kind of path typically only gets stopped up where there is a convenient alternative route and there is some kind of problem with the route to be stopped up - for example the area is being used for anti-social behaviour.

Unless and until the path becomes plagued by young people riding dirt bikes and taking drugs, there isn't much incentive for the ~30 residents to agree to the highway being stopped up and then pay you premium price to buy the land off you.  Being highway at present means any issues that do occur are someone else's problem, and being highway means the highway authority and police have a wide range of powers to deal with ASB if it did happen.  There's no obvious up-side for the residents unless there is an existing problem that the authorities are not dealing with, or that their back gardens are tiny and this land would make a significant difference to them.

How old are the houses, and how ancient does the woodland appear to be?  It sounds possible there may have been an 'ancient' path running across the land before it was developed meaning the developer(s)  was/were able to build up to the path either side, but had to leave the path intact.  Having sold the houses, the developer is left with the strip of land they can't do anything else with... other than find someone willing to buy a piece of land that nothing much can be done with.