Extinguishment (Removal) of Highway Rights

Please note. The final stage of an extinguishment requires an order being approved by a magistrates court. Currently the courts are not hearing non urgent cases including extinguishments. In the circumstances the County Council will carry out the preliminary stages of the extinguishment procedure which are covered by the application fee, however, it will not ask for the first instalment and will suspend the process at that stage until the courts become fully operational. This will inevitably delay the process. You may therefore wish to postpone applying for an extinguishment for the time being.

When the County Council considers that an area of the highway is unnecessary for highway purposes, an application can be made to a Magistrates’ Court for the highway rights to be extinguished (removed). This procedure is also known as "stopping up" the highway.

The County Council submits an application to the Magistrates’ Court for an Extinguishment Order under Section 116 of the Highways Act 1980, on behalf of the individual/organisation requesting to extinguish highway rights.

Where areas of publicly maintainable highway are included in proposed development schemes, the ‘stopping up’/extinguishment of such areas under Section 247 of the Town and Country Planning Act 1990 may be more appropriate. For more information, visit Planning Portal.

How highways are defined

The definition of public highway is:

"a way over which all members of the public have a right to pass and repass."

The most common are footpaths, bridleways and full vehicular use highways.

The public highway usually extends over the whole width of a road, footway, verge and other land up to the boundaries of adjoining properties and fields.

Land ownership

The County Council does not normally own the land beneath a highway but is only responsible for maintaining the surface. The extinguishment process removes the public highway rights but does not transfer land ownership.

Once highway rights are removed, land reverts to the freehold owner of the subsoil. For example, on residential estates the land is likely to belong to the original developer. It is the responsibility of the applicant to make all the necessary enquiries into land ownership and arrange for the subsequent transfer of title. Land Registry can help you find out who owns the subsoil of a piece of land.

Where the County Council does own the subsoil, the applicant will need to separately negotiate with the Council regarding the purchase of the land.

It is recommended that the applicant investigates any costs involved with the transfer of land ownership prior to the extinguishment procedures being commenced, but not to commit financially unless/until the extinguishment application is successful.

The process
Confirming the area to be extinguished

Following submission of an application to extinguish highway rights, the applicant will be sent a plan showing the extent of the public highway. The applicant must annotate this plan to confirm the area of land which they are applying to extinguish.

Internal Consultation

There are three stages to the internal consultation, during which the County Council considers whether the land, which is the subject of the extinguishment application, is deemed unnecessary for highway purposes. The County Council reserves the right to amend or reject the application at any stage of the internal consultation.

  1. A preliminary internal consultation will take place with the local Highway Manager. The local Highway Manager will assess the application to ensure that the proposed extinguishment will not adversely affect public rights to the enjoyment of the highway, or compromise highway safety or any future highway requirements. See section three of the Guidance Notes for more information
  2. If the application is supported by the local Highway Manager, the consultation will be extended to interested/relevant County Council departments
  3. A formal extinguishment plan will be agreed with the applicant before approval is sought from the Assistant Director (Highways, Traffic and Engineering), which is the final stage of the internal consultation. If applicable, the formal extinguishment plan will incorporate any amendments stipulated by the local Highway Manager and / or interested/relevant County Council departments

Note: the application is still subject to review or rejection by the Assistant Director (Highways, Traffic and Engineering).

External Consultation (Stage 1)

If approval is granted by the Assistant Director (Highways, Traffic and Engineering), an invoice for the first instalment will be raised to cover the cost of the external consultation with:

  • District/Borough Council
  • Parish/Town Council (if applicable)
  • Statutory undertakers (public utilities such as water, gas etc.)
  • Local County Councillor

The statutory consultation period is 28 days, once payment has been received.

Dealing with Objections

Any objections received during external consultation must be resolved before the process can continue.

The Council cannot act as referee between the applicant and the objector, the applicant must liaise directly with the objector. In the case of the statutory undertakers, such as gas, water and electricity, this may mean agreeing an easement/wayleave for any of their equipment within the land concerned for which the statutory undertaker may charge a fee.

The Council will need the withdrawal of any objection in writing before the extinguishment can proceed. If this is not received within 180 days, it may be necessary to repeat the original consultation and the Council reserves the right to require a further £1,220 fee before proceeding. Any objections at this stage must be resolved before the process can continue.

Serving Notice (Stage 2)

Once the external consultation is successfully complete (there are no objections from any of the consultees or any objections have been resolved), the invoice for the second instalment will be raised to cover serving Notice, court fee and legal costs.

Once payment has been received, the Council will book a court date and undertake the formal notifications ensuring compliance with the Schedule 12, Part 1 of the Highways Act 1980, which includes:

  • Informing the applicant of the court date
  • Arranging for Notices to be placed on site, in newspapers and in the local library
  • Writing to adjoining/affected residents/landowners
  • Notifying consulted local authorities and statutory undertakers

Court Hearing

The applicant will be informed of the outcome of the court hearing and if successful will be provided with a copy of the Order signed by the Magistrate.

Please see the Guidance Notes for further details on the process.

Timescales

An extinguishment is a lengthy and potentially complicated legal procedure which, depending upon the details of the application, takes on average a minimum of twelve months.

There are a number of steps in the process where delays can occur:

  • Following internal consultation, it may be necessary to agree a revised extinguishment area in order to proceed with the application
  • External consultees may not respond by the end of the consultation period. In order to proceed with the extinguishment process, each consultee must confirm that they do not object to the application. Confirmation of ‘no objection’ must still be obtained even once the official consultation period has passed which effectively extends the consultation period
  • Objections may be raised as part of the external consultation. Objections must be addressed by the applicant and must be resolved before the extinguishment process can progress. This can involve lengthy discussions between the applicant and the objector. In the case of utility companies, it may be necessary for the applicant to agree a wayleave/easement with the company
  • The County Council will endeavour to book a court a date so that the hearing is scheduled approximately three months from when payment is received. However, we are bound by the availability of the Magistrates’ Court and legal representation, which if unavailable, can extend the process.
Charges

All fees are non refundable.

There is an initial application fee of £83 which is payable on submission of the application, for a plan which confirms that the land concerned is subject to highway rights.

Providing the application is approved following the internal consultation, an invoice for the fee to cover the external consultation will be raised. The external consultation will not commence until this payment has been received.

Upon completion of the external consultation, an invoice for the court fees, legal fees and Noticing will be raised. A court date will only be booked once payment is received.

  • £83
  • Initial application fee
  • £1,220
  • First instalment to cover external consultation
  • £2,864
  • Second instalment to cover court fees, legal fees and serving Notice

No VAT is charged as this is a non-business service and the VAT is classed as ‘out of scope’. However, should it be required for your records, Hampshire County Council’s VAT number is GB 189 4068 22.

An additional cost may be required if the initial hearing is contested and a second hearing is needed.

The cost of any diversion of any utilities and/or the cost of entering into any wayleave/easement agreement is also to be met by the applicant.

Before you apply

Before you apply ensure that you have the following information available:

  • Plan showing area to be extinguished – you will be required to upload this to your application
  • Billing information – if different to the applicant contact details you will be required to supply the contact details for the bill payer.
Apply

If you are happy you understand the process, timescales and charges: