Stopping up orders
Stopping up orders are usually made to allow development to take place or because the public highway is no longer necessary. Public highway can include roads, streets, footpaths, public car parks, grass verges and footways. Not all roads, streets or footpaths are public highways.
We have the power to stop up areas designated as highway land by making orders known as a 'stopping up' order.
The term 'stopping up' means that once such an order is made, the highway land ceases to be a highway, road or footpath ie the highway rights are extinguished in law.
If an order is successfully made on the public highway, then the land is free of any Highway Authority control. It is common law presumption that the subsoil of the area stopped up reverts to the landowners. The land can then be enclosed or developed, subject to any necessary planning consent.
The plan and schedule attached to the order identifies the area of highway to be stopped up (closed). Notice of the intention to make the order is also displayed:
- Stopping up orders webpage
- On highway to be stopped up
- advertised in a local paper and the London Gazette.
There is a period of 28 days from the publication date of the notice in which to make an objection. Objections must be made in writing.
If no objections are received, the order is made and re-advertised as before. Judicial challenge to validity of an order should be made within six weeks of the publication date of the notice of making the order. The timescale for processing this application varies but the applicants are requested to allow at least six months subject to no objections being received.
Statutory powers and responsibilities
We have a range of statutory powers and responsibilities in relation to public highways. In terms of stopping up, the most frequently used powers are:
Town and Country Planning Act 1990 - Section 247
Using this power a highway can be 'stopped up' to allow development to take place if it has received or may receive planning permission. It will generally relate to an area of highway which is to be built upon or affected by development in some form.
Highways Act 1980 - Section 116 and Section 118
Under these sections of The Highways Act 1980, a public highway can be stopped up because it is no longer in use. The decision to make orders under Section 116 or Section 118 of the Highways Act 1980 provide for an authorisation by the court to stop up highway.
The land concerned needs to be owned by the applicants for the stopping up application to be processed. An application under S116 or S118 require that at least 28 days notice is given before the date on which the application is to be heard.
Please note that only the Highways Authority can make an application to the Magistrates Court for an order. Applicants must apply to the council and pay for all costs involved.
Provided no objections to the stopping up order are received, the time scale required to process stopping up applications is typically a minimum of nine months.
We do not usually encourage such applications to stop up the highway as we cannot guarantee the outcome.
Generally this process proves to be unsuccessful, as anyone can object to the stopping up and it is difficult to prove that the highway is unnecessary. The stopping up process involves consultation with all residents affected by the proposal as well as statutory services. A notice is served to all interested parties.
Any objections have the right to be heard at the Magistrates Court. They also have the right to appeal to the court if the order is made. Applicants will have to demonstrate why the highway is no longer necessary.
A stopping up order will not be made unless the written consent, of every person having a legal interest in the land over which the highway is proposed to be stopped up, is obtained and produced to the Magistrates Court.
As a minimum the following confirmations in writing are required:
- Agreements in writing by all the residents living in the road, including those abutting the highway to be considered for stopping up, confirming that they fully support such application and that they would take over future maintenance of the road including street lighting.
- Confirmation of ownership of the sub-soil of the highway considered for stopping up.