Devon County Council maintains over 8,000 miles of road in the county as well as a large number of footways, cycleways and verges. This is what is defined as highway maintainable at public expense (HMPE) which the County Council is responsible for.
The County Council may, by legal order, stop up areas designated as HMPE.
The term “stopping up” means that highway land ceases to be public highway and is no longer the responsibility of the County Council. Any rights of public access is also extinguished in law.
If a stopping up order is successful the land would revert to the registered landowner, if known. Applications to change the land registration must be done with Land Registry. However, they will not consider claims for ownership of unregistered land whilst it is still public highway. Land registration is outside the control of the County Council.
There are two legislative routes available to stop up highways
Section 247 Town & Country Planning Act 1990
Powers available under S247 Town & Country Planning Act 1990 allow HMPE to be stopped up to facilitate development, subject to planning consent.
This process requires consultation, a notice must be advertised in a local newspaper and the London Gazette. There is a period of no less than 28 days from the date of publication in which to make a written objection to the proposed order.
If no objections are received, the order is then made as an unopposed order and the notice of making is advertised in a local newspaper and the London Gazette. Any judicial challenge to the validity of the order must be made in writing within six weeks of the publication date of the notice of making.
Applications must be submitted to the Department for Transport who are responsible for processing these requests. Further details are available on their website.
Highways Act 1980 – Section 116 and Section 118
If the stopping up is not requested for planning reasons, then Devon County Council may seek authorisation from the Magistrates’ Court to stop up areas of HMPE where it is no longer considered necessary for public use.
Only the County Council can make an application to the Magistrates’ Court for an order. Applicants must apply to the County Council and pay all associated costs.
The County Council asks for £5,000 up front to cover costs. Anything unspent at the end of the process would be returned.
It should be noted that if additional external costs are required following investigations, then this would also need to be paid for by the applicant. An example would be if statutory undertakers require their equipment to be moved from under the land being stopped up.
Stopping Up Process
The process to stop up land currently considered to be HMPE is a fairly lengthy one.
When a request is received, the local Neighbourhood Highways Officer will confirm if they are in agreement that the area of HMPE is no longer considered necessary for public use.
The County Council informally consult the District and Parish Council, which we are required to give 2 months to respond. Consultation with adjacent landowners, potentially interested groups and statutory undertakers is also undertaken at this time, giving them 1 month to respond. If we were to receive objections at this stage or any concerns/issues highlighted, we would be unlikely to proceed if the issues cannot be addressed or resolved.
The next stage, if we receive no concerns, would be for the request to be reported to the next Highways and Traffic Orders Committee for the District and these are held 3 times a year (4 times a year in Exeter).
If approved, all those previously consulted are notified of our intention to take the stopping up to the Magistrates’ Court and an advert is published in a local newspaper and The London Gazette at least 28 days before the Magistrates’ Court hearing, the date of which is determined by the court. Notices are also placed on site 28 days prior to the date of the hearing.
This whole process can take from 6 to 12 months, dependent on the consultations, the dates of committee meetings and the availability of the Magistrates’ Court.
Making an Application
If you wish to apply to stop up a part of the public highway then please telephone our Customer Service Centre on 0345 155 1004 or email csc.roads@devon.gov.uk