Defination of a highway

Grizebeck

The property i am buying is in a conservation area.  We have managed to to sort an issue with the LR where the boundary did not go to the river and the plan is now correct
We are now looking at demolishing some walls at the front.  We can do this without consent / PP if one of two conditions are met.

From the planning portal guidance

Please note that in a conservation area you do not need permission to demolish a building which does not exceed 115 cubic metres or to take down any wall, gate or fence which is less than 1 metre high where abutting a highway, or less than 2 metres high elsewhere.

 
I am not in a position to the measure the wall until i am next at the property but i think its border line

The road in front which serves other properties only is unadopted road/private road so to speak.  However rather then it being simply unadopted by the council the house i am buying actually owns the piece of road in front of it (with the garden on the other side) (as show on the conveyance document.

I understand that an unadopted road can be a highway but not sure if the ownership situation changes this

Thoughts please...

Section62

Grizebeck said:

I understand that an unadopted road can be a highway but not sure if the ownership situation changes this

AIUI ownership makes no difference.  In fact many people own the land the (public) highway is constructed on in front of their house.

"Highway" isn't defined in the relevant planning acts, instead a common law definition has been used by the courts.  In essence a 'way' is a 'highway' if there is a public right to use it.  Private roads may have a public right and therefore are highways.

TBH in a situation like this I'd always suggest asking the council. It could save a lot of hassle later.  Demolition without consent in a conservation area is quite a serious offence, and the council has powers to require the demolished structure to be rebuilt.  Rebuilding 'heritage' to the council's satisfaction can be painfully expensive.  Equally, the potential legal costs involved in arguing with a dogmatic planning authority are something the average person should do all they can to avoid.

Grizebeck

@Section62 I mean I own that bit of road 
In relation to the courts bit yes I have seen this 
https://gowlingwlg.com/en/insights-resources/articles/2018/supreme-court-on-definition-of-a-highway/

And I agree about approaching the council 

I guess I am getting technical here but I'd like to clarify if its highway or not. 

silvercar

If it is just a wall and you think it is about 1m and you are knocking it all down, all evidence will be destroyed. 

Grizebeck

silvercar said:

If it is just a wall and you think it is about 1m and you are knocking it all down, all evidence will be destroyed. 

Interesting point

Section62

Grizebeck said:

silvercar said:

If it is just a wall and you think it is about 1m and you are knocking it all down, all evidence will be destroyed. 

Interesting point

...all evidence except, google streetview, EA pictures, dashcam footage, neighbour's (or anyone else's) pictures, pictures taken or held by the LA, and/or the conservation area character statement. (and probably more I've not thought about).

Grizebeck

Section62 said:

Grizebeck said:

silvercar said:

If it is just a wall and you think it is about 1m and you are knocking it all down, all evidence will be destroyed. 

Interesting point

...all evidence except, google streetview, EA pictures, dashcam footage, neighbour's (or anyone else's) pictures, pictures taken or held by the LA, and/or the conservation area character statement. (and probably more I've not thought about).

Yes photos on rightmove etc. I am not suggesting going down that route obviously,  even looking at the photos it's hard to define the height 

Section62

Grizebeck said:

I guess I am getting technical here but I'd like to clarify if its highway or not. 

This is the fundamental issue - because the definition is flexible and varies by context, such clarification is likely to be obtained only at the end of an (expensive) legal process.

In the interim it would be a case of your (and other owners?) belief, vs the LPA's belief (if the two differ).

Hopefully the council may be willing to agree with you that the roadway isn't highway for the purpose of needing consent for demolishing the wall.

Grizebeck

@Section62 I wonder if an email asking the council if "front street" is by their definition a highway and see what response I get. Without any reference to any wall.

Section62

Grizebeck said:

I wonder if an email asking the council if "front street" is by their definition a highway and see what response I get. Without any reference to any wall

Possibly, although I might use the words "private road in front of my property" as "street" might bias the response in an unhelpful way.  Unless the enquiry is directed specifically to the planners there's a risk of it being allocated to the highways department for a response... and they may reply confirming that the road isn't a public highway (because their interest is mainly in whether they have to pay to maintain it or not).

Now if you get a response confirming it isn't public highway you may decide to act one way or another on that basis.  But I'd guess you know better than the average person that acting on information you know to be incorrect won't necessarily help your case should you find yourself in front of a magistrate or judge.

My general advice for people living in conservation areas or in listed buildings is to get to know the conservation officer.  Make them your friend and show them how you want to do the right thing.  Most of them act quite positively towards people who want to engage with them in a like manner.  This is especially important if you have other alterations in mind for the future.  If you ask them and they give you the nod to demolish the wall (obviously in writing) then you will know you won't have a problem.  If they say 'No' then you can still make an application (and possibly appeal)... but what you would then know is that if you'd done the work without consent then the risk of enforcement action would have been a realistic prospect.

Grizebeck

@Section62 great advice !