Private street owned by Council

[Marti1]

I live in an unadopted private street but the freehold belongs to the Council. For a number of years the Councils Environmental and Leisure Department then the Housing Dept constructed the street by laying tarmac on it and filled in potholes.
A few years ago the Highways Authority said the frontagers were responsible for the costs of maintenance and they have no record of previous works.

Is this legally right?
If not can you direct me to an Act or something legal that can back the argument please?

[leaseholdanswers]

Its their land, and the burden is on them to prove that others are responsible for repairing or contributing to repairing the land.

If it is unadopted, it falls to the owner to maintain it, in this case the council as owner (not highways authority) ,unless other obligations have been created. The burden is still on them.

Ask them to show you in detail.

Get hold of your title deeds and the plan to see if you are obligated, but dont tell the council.

[Richard Webster]

If you can prove the freehold belongs to the Council then provide evidence of that to the Highway Authority.

[jeffrey]

Maybe the Local Authority are the Local Highway Authority.

[leaseholdanswers]

Maybe the Local Authority are the Local Highway Authority.

Good luck getting two departments to talk to each other!

[pilman]

The first question that should be researched is how does the Council come to own the unadopted street.

Did they buy the land or was it set out as a street under a very old act of parliament.
Many years ago in late 1700's and then throughout 1800's, local parishes were subject to Enclosure Acts which consolidated land between the land-owners who previously owned strips of land throughout the parish. At this time there were set out what were to be the public roads to be maintained by the parish. You should try and find out if there was an Enclosure Act for your area as the details are kept by the Archive section of Councils.

If the Council did at one time buy the land, the law says that no one can be made to pay for the maintenance unless these payments were in the deeds of each property that has frontage to the road.

In fact the law says that the owner is not obliged to maintain a private right of way although any one having the right of way can chose to do so at their own expense.

You cannot force the council to maintain the private right of way, but you may be able to prove that it is now a public highway through more than 20 years use by members of the public.
Then it may be possible that the council will be compelled to maintain it because they cannot let a public highway fall into disrepair although they can totally ignore the road if it remains a private right of way for the use solely of the residents of the adjoining houses.

[Marti1]

Hi,
Thank you for your answer.
The road was an 'Occupation Rd' sold to the LCC with a package of farmland back in 1952.
It is recognised as a highway by the Council.
There is nothing in anyones deeds referring to any payments or maintenance for the road.

You mentioned that:' If the Council did at one time buy the land, the law says that no one can be made to pay for the maintenance unless these payments were in the deeds of each property that has frontage to the road.'

I would be most grateful if you could let me know which 'law' mentions the above. This information would be invaluable to me.

thanks again,
marti1

[jeffrey]

I think that the idea is an adopted highway (LHA own; repairs funded by Council Tax etc., rather than frontagers).

[mind the gap]

:confused:Was there another post between what are now #7 and #8?

Jeffrey's answer seems to make no sense at all in relation to the question posed in #7.

[Marti1]

No I did not understand that response either.
Am hoping that Pilman sees my question in #7 as I would really like to know that 'law'

Marti1

[leaseholdanswers]

There is no one law to point to, land law is a mix of statute (law) case law, common law, local bye law, all applied to the particular ownership and history of your situation.

Can I suggest you refer to my earlier post #2 and ask the council to explain why you are required to make a contribution. Use their complaints procedure to ensure that it is escalated to ensure that you get a reasoned and justified answer, right up to the chief executive. Its normally in timescale ten days for stage one, 20 days for stage two and then 20 days stage three by the chief executive.

Asking "Why" is the quickest way and bring back their repsonse for further comment

Good luck.

[pilman]

These are the notes I once made in response to a query about who is responsible for maintaining a private right of way. The Common Law has been settled on this matter as mentioned by the judge in the quote from the case referred to.


Carter v. Cole (2006) - Court of Appeal

The Law apart from clause 3.2 of the Transfer.

Unsurprisingly the law about construction and repair of rights of way granted as easements has been settled for some centuries. The following propositions (all of which, in principle, are subject to any contrary agreement) were not controversial:-
(1) A grantor of a right of way ("the servient owner") is under no obligation to construct the way;

(2) The grantee may enter the grantor's land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him ("the dominant owner"); see Newcomen v Coulson (1887) 5 ChD 133, 143 per Jessel MR;

(3) Once the way exists, the servient owner is under no obligation to maintain or repair it, see Pomfret v Ricroft (1669) 1 Wms. Saunders (1871 ed) 557 per Twysden J, Taylor v Whitehead (1781) 2 Doug KB 745 and Jones v Pritchard [1908] 1 Ch 630, 637, per Parker J;

(4) Similarly, the dominant owner has no obligation to maintain or repair the way, see Duncan v Louch (1845) 6 QB 904;

(5) The servient owner (who owns the land over which the way passes) can maintain and repair the way, if he chooses;

(6) The dominant owner (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost: Taylor v Whitehead (1781) 2 Doug KB, per Lord Mansfield.
He has a right to enter the servient owner's land for the purpose but only to do necessary work in a reasonable manner, see Liford's Case (1614) 11 Co Rep 46b, 52a (citing a case in the reign of Edward IV) and Jones v Pritchard [1908] 1 Ch 630, 638 per Parker J.

A public Highway is the sole responsibility of the local Highway Authority for the area, so all adopted highways should be maintained by that authority. In our area that used to be the County Council rather than the district council, but we now have a single unitary authority who should provide all services including highway maintenance

[Marti1]

Thank you for your response.

I have been through stages 1-3 and am now in the process of having to put my case to the Ombudsman.

The Stage 3 response basically stated a private street is a highway maintained by the frontagers (which under normal circumstances I would agree on).
However, although I have informed the Council that over a number of years myself and my neighbours have seen the Council maintaining the road, they say they are unaware of any repairs except for one. That one time theChief Executive assumes the Council undertook the work as pending frontager of adjacent land which at that time was a field.
I believe it was the Councils Housing Committee that undertook the cost of the repairs.

I have since collected Witness Statements verifying the Council actually constructed the road in 1978 with ashphalt and then widened it in 1990 with more tarmac and filled in potholes up to 1995 without asking the frontagers to contribute in any way. It was around 2000 that the Council started to say it was the frontagers responsibility.

Hence I am trying to work out the best thing to say to the Ombudsman.
Can adoption can be expressed by repairing the road over a number of years?

Any further help gratefully accepted

[jeffrey]

A public Highway is the sole responsibility of the local Highway Authority for the area, so all adopted highways should be maintained by that authority. In our area that used to be the County Council rather than the district council, but we now have a single unitary authority who should provide all services including highway maintenance
...which is, more or less, what I posted (#7)- despite other members' uncertainty.

[Marti1]

It's an unadopted private street that has been constructed and maintained by the Council over at least 17 years but around 2000 they stopped repairs and said it was down to the frontagers.
Although the frontagers do benefit from it the road was only improved after it became a thoroughfare to a Council Estate.

I have a letter from the Borough Housing Officer (dated 1990) stating the road is in the ownership of the Council's Housing Committee

So- do the frontagers have the responsibility to maintain it or the Council?
.

[jeffrey]

So do the frontagers' title deeds include any positive covenant to pay?

[Marti1]

No. There is nothing in the deeds of any of the frontagers.

[Marti1]

Extra info:
Have checked the searches and under 'Roads' the answers to all 4 questions are 'NONE'.
including the third question 'Which of the roads.....are to be made up at the cost of the frontagers under a current Council resolution.'

As the Deeds/Searches do not state we have to maintain the road does that mean we are exempt?

[leaseholdanswers]

I dont see the councils reply as reasoned; You say that it was acquired by the LCC who in turn likely via the GLC adoption and then break up, to the local authority.

If it is a private street it is theirs, as posted, as an owner. As an owner they had the highways department maintain it, not as highways authority.

They have to show how you as frontagers are obligated to contribute by title deeds, prescription, common law or statute as posted earlier and by Jeffrey. Of course it is settled law that some highways are not required to be repaired at all! The highways Act 1980 I recall does give power to levy costs on frontagers but its not a simple straight forward act.

If the cost today and then in future are high then try a direct access barrister
http://www.barcouncil.org.uk/about/instructingabarrister/