A useful explanation Sue - many thanks for that. The Millhouses Ecclesall & Carter Knowle [MECK] Community Group objected to the Planning Application by the property-owner, and is still concerned that the implications for traffic safety and the loss of local green space were not adequately considered.
We have written to the Chairs of the Finance and Strategy & Resources Committees to object to the stopping-up of this part of the highway, and to the sale of the verge to the property-owner, on the grounds that
a) the legislation [the Town and County Planning Act, 1990] does not compel the Secretary of State to approve such an order, but "may" do so; and only for the purpose of improving or extending the highway. That does not cover such a land-grabas this, purely for the sake of extending someone's garden!
b) the Council does not have to sell the verge in such a case: and doing so purely fo that purpose does have considerable implications for the thousands of other sections of grass-verge around the city - implications that we feel have not been considered, and which should be discussed by the relevant Committee and approved as part of a general Council Policy.
It seems to be that SCC has forgotten about their collaborative work when it comes to planning applications. Great that Simon, Andy and all the volunteers are still chipping away at all the small waterways connections while keeping an eye on the bigger picture.
I work independently in public rights of way and highways and offer the following in respect of the piece in today's issue. It is generally not the case that highway and highway verge is owned by the public or owned by the Council 'standing in for' the public. The surface of any highway (including the verge) that is highway maintainable at public expense is vested in the highway authority. Vesting is a complicated concept, it is a kind of ownership, but it only applies while the land is legally highway. If the highway rights get stopped up the limited ownership that vesting gives the Council ceases.
The subsoil of the highway does not usually belong to the Council. It may not be possible to prove who owns the subsoil, but it is not uncommon for the adjoining landowner to own it and in some cases for that ownership to be registered at the land registry.
If the Council (or in some cases the Secretary of State for Transport) has bought land to construct a road then the highway and its verges will be owned by the Council - but for the vast majority of roads in the city the Council will not own the land on which they are constructed.
The grant of planning permission, conditional or otherwise, does not mean that a development can automatically go ahead. In the case of a development that involves developing over a highway it will be necessary for the highway rights to be stopped up. Once planning permission has been granted, highway rights can be stopped up by an administrative order made under the Town and Country Planning Act, 1990. This can be objected to.
It is also the case that it is illegal to plant (even bulbs or flowers) in the highway, including the verge. The Council can grant a licence to plant, but this is something that is usually overlooked.
Hi Sue - you refer to the potential orders under the TCPA 1990 and the possibility of objections to such orders. Can you point me to the source of that - is it under the TCPA or elsewhere? As that is exactly what the MECK Community Group want to do in this case.
The verge is public highway.
Also we are pressing the Council Committees to clarify their Policy re sales of such land, as we have had an Officer opinion that he can just make that decision on his own bat - and we want to contest that.
If it is highway verge of a carriageway highway (i.e. a road verge) it will be an order under Section 247 of the Town and Country Planning Act, which is an application to the Secretary of State for Transport.
The Council can only sell the land, if they own it....they may own but (as I've explained elsewhere) the Council won't own it just because it is highway verge.
Ask to see the Council's scheme of reference and delegation in respect of who decides re land sales.
My info is that the Council does own it as it was transferred from South Yorkshire County Council in 1984 - SYCC having been gifted it by the developer of the Falkland Rd estate in the early 1970’s.
I will check out the delegation scheme but we hope the Finance Committee will override it if necessary.
Thanks Sue
BTW do you know how the application to the Secretary of State works? Is that something the property-owner would have to do?
Many thanks for this Sue - as you can tell I found it as easy as the rest of the public to get baffled by this. I spoke to a few local highways folk and I think I tried to simplify matters too much, and will try and amend the post later today. It seems to me that the confusion leads to just this kind of problem. In this case, I think the ‘stopping up’ is still being considered which I imagine may mean that work on the verge shouldn’t really be going on as yet?
Highway law is horribly complicated. Assuming that the land concerned is part of the highway/highway verge then work should not be going on until the public rights have been stopped up, unless there is a temporary traffic regulation order in place. Most councils no longer grant these where development is involved, as what commonly used to happen was the development would be carried out with no permanent order being made/confirmed. It is possible for highway rights to be stopped up by other means, but I would assume that in this case the applicant for permission would seek an Order to be made by the Secretary of State for Transport under S247 of the Town and County Planning Act, 1990. Councils can make similar Orders under S257, but these powers do not extend to Orders for ordinary roads and their verges. If development is being carried out already then people can complain the the Council and they may wish to take photographs.
I live local to the verge in question and walk past it often with the dog . It’s always been left looking unkempt/untidy in the last 6 years I’ve lived here . What ever the home owner has planed has to be better than what it looks in its current state
That may be true Barry - but several locals have complained that the property owner has regularly been parking vehicles on there, both vans and cars; and that some requests to the Council for permission to plant flowers and bushes have been refused. Plans to allow that are apparently in the pipeline, according to a local Councillor.
It would be unusual, but not impossible, for gifted land to be highway. New highways are usually just adopted by the Council. It is the ‘adoption’ that makes a highway ‘maintainable at public expense’.
It would be worth trying to find the original planning documents and any Council minutes relevant to the decision to permit the development and to adopt the highway in it. You could also ask to see the adoption plans. Though not all of these records may still survive.
For a development of that sort of age it was not uncommon for areas of land to be given to the Council as public open space.
In my experience it is not uncommon for Councils to have no idea now of why they own bits of land and to have forgotten that land was once designated as public open space.
If an application for a stopping up order needs to be made then it is usually the developer who needs to make it. From memory there is information about the process on the .Gov website.
A useful explanation Sue - many thanks for that. The Millhouses Ecclesall & Carter Knowle [MECK] Community Group objected to the Planning Application by the property-owner, and is still concerned that the implications for traffic safety and the loss of local green space were not adequately considered.
We have written to the Chairs of the Finance and Strategy & Resources Committees to object to the stopping-up of this part of the highway, and to the sale of the verge to the property-owner, on the grounds that
a) the legislation [the Town and County Planning Act, 1990] does not compel the Secretary of State to approve such an order, but "may" do so; and only for the purpose of improving or extending the highway. That does not cover such a land-grabas this, purely for the sake of extending someone's garden!
b) the Council does not have to sell the verge in such a case: and doing so purely fo that purpose does have considerable implications for the thousands of other sections of grass-verge around the city - implications that we feel have not been considered, and which should be discussed by the relevant Committee and approved as part of a general Council Policy.
Mike Hodson, MECK CG Secretary.
Great pieces as usual. I always thought the City of Rivers Waterways Strategy was an inspired piece of work - more than a decade old now https://www.sheffield.gov.uk/sites/default/files/docs/planning-and-development/conservation/Sheffield%20Waterways%20Strategy.pdf
It seems to be that SCC has forgotten about their collaborative work when it comes to planning applications. Great that Simon, Andy and all the volunteers are still chipping away at all the small waterways connections while keeping an eye on the bigger picture.
David, please see the link below.
https://picturesheffield.com/frontend.php?keywords=Ref_No_increment;EQUALS;s14925&pos=26&action=zoom&id=17801
The land in question was actually part of the property (which dates back to c1855) until at least 1976, as you can see.
I've lived here for about half that period & it unfortunately has never been maintained or valued.
Hi David
I work independently in public rights of way and highways and offer the following in respect of the piece in today's issue. It is generally not the case that highway and highway verge is owned by the public or owned by the Council 'standing in for' the public. The surface of any highway (including the verge) that is highway maintainable at public expense is vested in the highway authority. Vesting is a complicated concept, it is a kind of ownership, but it only applies while the land is legally highway. If the highway rights get stopped up the limited ownership that vesting gives the Council ceases.
The subsoil of the highway does not usually belong to the Council. It may not be possible to prove who owns the subsoil, but it is not uncommon for the adjoining landowner to own it and in some cases for that ownership to be registered at the land registry.
If the Council (or in some cases the Secretary of State for Transport) has bought land to construct a road then the highway and its verges will be owned by the Council - but for the vast majority of roads in the city the Council will not own the land on which they are constructed.
The grant of planning permission, conditional or otherwise, does not mean that a development can automatically go ahead. In the case of a development that involves developing over a highway it will be necessary for the highway rights to be stopped up. Once planning permission has been granted, highway rights can be stopped up by an administrative order made under the Town and Country Planning Act, 1990. This can be objected to.
It is also the case that it is illegal to plant (even bulbs or flowers) in the highway, including the verge. The Council can grant a licence to plant, but this is something that is usually overlooked.
Really interesting Sue. Thanks for the additional information.
Hi Sue - you refer to the potential orders under the TCPA 1990 and the possibility of objections to such orders. Can you point me to the source of that - is it under the TCPA or elsewhere? As that is exactly what the MECK Community Group want to do in this case.
The verge is public highway.
Also we are pressing the Council Committees to clarify their Policy re sales of such land, as we have had an Officer opinion that he can just make that decision on his own bat - and we want to contest that.
If it is highway verge of a carriageway highway (i.e. a road verge) it will be an order under Section 247 of the Town and Country Planning Act, which is an application to the Secretary of State for Transport.
The Council can only sell the land, if they own it....they may own but (as I've explained elsewhere) the Council won't own it just because it is highway verge.
Ask to see the Council's scheme of reference and delegation in respect of who decides re land sales.
My info is that the Council does own it as it was transferred from South Yorkshire County Council in 1984 - SYCC having been gifted it by the developer of the Falkland Rd estate in the early 1970’s.
I will check out the delegation scheme but we hope the Finance Committee will override it if necessary.
Thanks Sue
BTW do you know how the application to the Secretary of State works? Is that something the property-owner would have to do?
Many thanks for this Sue - as you can tell I found it as easy as the rest of the public to get baffled by this. I spoke to a few local highways folk and I think I tried to simplify matters too much, and will try and amend the post later today. It seems to me that the confusion leads to just this kind of problem. In this case, I think the ‘stopping up’ is still being considered which I imagine may mean that work on the verge shouldn’t really be going on as yet?
Highway law is horribly complicated. Assuming that the land concerned is part of the highway/highway verge then work should not be going on until the public rights have been stopped up, unless there is a temporary traffic regulation order in place. Most councils no longer grant these where development is involved, as what commonly used to happen was the development would be carried out with no permanent order being made/confirmed. It is possible for highway rights to be stopped up by other means, but I would assume that in this case the applicant for permission would seek an Order to be made by the Secretary of State for Transport under S247 of the Town and County Planning Act, 1990. Councils can make similar Orders under S257, but these powers do not extend to Orders for ordinary roads and their verges. If development is being carried out already then people can complain the the Council and they may wish to take photographs.
I live local to the verge in question and walk past it often with the dog . It’s always been left looking unkempt/untidy in the last 6 years I’ve lived here . What ever the home owner has planed has to be better than what it looks in its current state
That may be true Barry - but several locals have complained that the property owner has regularly been parking vehicles on there, both vans and cars; and that some requests to the Council for permission to plant flowers and bushes have been refused. Plans to allow that are apparently in the pipeline, according to a local Councillor.
It would be unusual, but not impossible, for gifted land to be highway. New highways are usually just adopted by the Council. It is the ‘adoption’ that makes a highway ‘maintainable at public expense’.
It would be worth trying to find the original planning documents and any Council minutes relevant to the decision to permit the development and to adopt the highway in it. You could also ask to see the adoption plans. Though not all of these records may still survive.
For a development of that sort of age it was not uncommon for areas of land to be given to the Council as public open space.
In my experience it is not uncommon for Councils to have no idea now of why they own bits of land and to have forgotten that land was once designated as public open space.
If an application for a stopping up order needs to be made then it is usually the developer who needs to make it. From memory there is information about the process on the .Gov website.