Having an adopted highway exactly where you need it to access your site is almost like development magic. Essentially, often the difference between everyone having access for everything, and no one having access for anything. But how do we know whether the highway fairy has waved their wand over a piece of land?

In a recent case (KBC Developments LLP v Wavin Limited) the High Court had to consider the extent of adoption of a hammerhead on a 30-year-old estate adjacent to a railway, both along the ground (the horizontal plane) and up and down (the vertical plane). The question was presumably litigated because the outcome made a great deal of difference to the financial position of the parties involved.KBC wanted to open up development on the far side of the railway, by landing a bridge over the railway on the hammerhead with only the consent of the highway authority. Whereas Wavin wanted to show that when it developed the site originally it had retained a ransom, either in the form of an unadopted strip of land at the end of the road in the horizontal plane, or above and below the adopted highway in the vertical plane.

The case was decided in favour of KBC. In the horizontal plane Wavin was scuppered by having entered into a Section 38 highway adoption agreement which dedicated the potential ransom strip as highway even though it was outside its planning boundary (but not its ownership). The terms of the Section 38 agreement (the express drafting together with the plan attached to it) were taken to be definitive of the extent of the land that Wavin intended to dedicate – which surely must be right.

In the vertical plane Wavin was doomed by the fact that the Section 38 agreement and other documents showed that the hammerhead was always intended to provide a landing point for a future bridge over the railway, and so the court found that the highway included enough soil beneath and enough airspace above the carriageway to accommodate the bridge and its footings.

In this, Wavin were probably rather unfortunate; the extent of the airspace above and subsoil below a highway which is adopted varies depending on the circumstances and had a bridge not been anticipated when the hammerhead was constructed it would quite possibly have been the case that the adopted subsoil and airspace would have been too limited to allow for the bridge and its footings to be constructed without extending outside the adoption into Wavin’s retained land which remained within their (rather than the highway authority’s) control – thus preserving their ransom.

This is only one example of the type of issues that we encounter in practice in ensuring developments can connect into the adopted highway network. But it illustrates the fact that nothing can be taken for granted, either by a developer seeking to make a highway connection or by a landowner believing it controls an access. The same principle applies to works under the highway, and in particular the installation of services at depth. We always recommend turning attention to access and servicing early in the development process to establish whether the site has the magic ingredients – or if it doesn’t.

If you wish to discuss anything covered in this real estate blog, please get in touch with Housebuilding & Strategic Land Partner, James Hart.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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