Is this Private road a public Highway?

[deadpixel]

Hi there,

I did a bit of searching for topics, but I couldn't find information to conclusively answer my specific question, so I thought I would post on here.

I live on a private road in London (postcode for road is SE21 7HW) and I am trying to determine if it would be classified as a 'public highway' under the Highways Act 1980 (along with any other legislation or case law that might help with this matter) My understanding is that the definition is ambiguous at best as is often the case with definitions in law.

There are several clues which make me believe it is a private road with no right of way and NOT a public highway.

- You must pay a toll to use the road during the day time via a toll gate in the middle of the road, at night the toll gate is unmanned an free passage is granted. this has been in place for several hundred years.

- residents of the road are granted free passage.

- All along the road there are signs saying private road, private property, etc.

- Parking contraventions are enforce by a private parking enforcement company, there is signage up the road every 50m or so.

- it has been removed from google maps street view, you could only do this if it was private property.

I would be interested to hear your thoughts on the matter.

Thanks in advance!

Edited by deadpixel on Saturday 13th January 14:26

[Red 4]

Private road.

Still a public place though.

[deadpixel]

Red 4 said:

Private road.

Still a public place though.

Thanks for the reply, I'm not contesting whether it is a public place in this instance, I want to know if it would be defined as a Public Highway under the Highways act.

Thanks.

[Red 4]

General rule;

If it isn't maintained by the Highway Authority, i.e. the council, then it won't be classed as a highway for the purposes of the Act.

That doesn't mean the RTA does not apply for certain offences.

[Evanivitch]

Who maintains it?

I'm interested in what your objective is. If it's to permit activities like driving without a license, insurance or whilst in the influence then due to the public access I don't think you'd be permitted to do so.

[paintman]

deadpixel said:

There are several clues which make me believe it is a private road with no right of way and NOT a public highway.

- You must pay a toll to use the road during the day time via a toll gate in the middle of the road, at night the toll gate is unmanned an free passage is granted. this has been in place for several hundred years.

I stand to be corrected but I think the highlight above could be an issue.

https://www.legislation.gov.uk/ukpga/1988/52/secti...
“road”
(a)F5 , in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes,

Who pays for the maintenance & repair of this road - the Highways Authority or the resident?
This worth a read:
http://www.stjohnschambers.co.uk/dashboard/wp-cont...

[deadpixel]

Red 4 said:

General rule;

If it isn't maintained by the Highway Authority, i.e. the council, then it won't be classed as a highway for the purposes of the Act.

That doesn't mean the RTA does not apply for certain offences.

Hello again, I do honestly appreciate your answer and I wish it was the case, however I been researching this the past few days and for the sake of clarity, I believe this is misleading.

Private roads can still be classed as a Public Highway under certain circumstances where they are called un-adopted roads, and you are correct, the responsibility for maintaining the road does not fall to the council but is at the owners expense. This is usually due to a private road being used for 20 years unimpeded and a as a result a public right of way is establish.

[deadpixel]

Evanivitch said:

Who maintains it?

I'm interested in what your objective is. If it's to permit activities like driving without a license, insurance or whilst in the influence then due to the public access I don't think you'd be permitted to do so.

My objective is to determine if a private enforcement agent is legally allowed to clamp your vehicle on this road (with no warrant for a dubious parking charge). They are only allowed to secure them on a highway or your driveway, not private property as defined in the Tribunals, Courts and Enforcement Act 2007.

http://www.legislation.gov.uk/ukpga/2007/15/schedu...

[deadpixel]

The Road is maintained by the Private Estate that owns it, all households on the estate pay a service charge to the Estate and the money raised by the toll gate is also used to pay for the road maintenance.

From what I can see:

- A private company (other than a contractor on behalf of the council or government) could never collect money to use a public highway.

- A private company cannot enforce parking and issue fines on a public highway (again unless they are contractors working for government or council)

[deadpixel]

paintman said:

I stand to be corrected but I think the highlight above could be an issue.

https://www.legislation.gov.uk/ukpga/1988/52/secti...
“road”
(a)F5 , in relation to England and Wales, means any highway and any other road to which the public has access, and includes bridges over which a road passes,

Who pays for the maintenance & repair of this road - the Highways Authority or the resident?
This worth a read:
http://www.stjohnschambers.co.uk/dashboard/wp-cont...

thanks for this. This is part of the problem, The specific definition I am after is whether or not it is a "Highway" I am not disputing that it is a road and the public can access it. The term "Highway" is not defined in this act from what I can see.

[Red 4]

deadpixel said:

Private roads can still be classed as a Public Highway under certain circumstances where they are called un-adopted roads, and you are correct, the responsibility for maintaining the road does not fall to the council but is at the owners expense. This is usually due to a private road being used for 20 years unimpeded and a as a result a public right of way is establish.

No problem. It may be easier if you can clarify why you are asking/ what aspect of The Highways Act you are looking to clarify rather than the broad definition of a highway.

i.e. right of way/access, parking problems, RTA offences, etc.

[paintman]

The second link goes into considerable detail as regards the Highways Act.

I can see this going the way of other posts where the OP provides a drip feed of pertinent facts which is irritating to say the least.

If you want the best answer then I suggest you post the full facts as to what's actually happened & who is doing the clamping.

[deadpixel]

paintman said:

The second link goes into considerable detail as regards the Highways Act.

I can see this going the way of other posts where the OP provides a drip feed of pertinent facts which is irritating to say the least.

If you want the best answer then I suggest you post the full facts as to what's actually happened & who is doing the clamping.

I have asked straight forward question, I did not add details to the question that I felt did not bear relevance in determining the answer. On this occasion I am not asking whether or not someone can clamp on the road as you often see on forums people going off on tangents and assumptions based misinterpretations of facts that are provided so I wanted to keep the question simple.

The additional information that I have provided is specifically in response to questions that other posters have asked.

Thank you paintman for the second link, as it has pointed me in the direction of a definition of a "Highway" in Common law :-

A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance. (Halsbury’s Laws 21[1]).

I will do a bit more research on that, I would say a private road that charges a toll would not be classed as a highway in this instance!

Thanks.

Edited by deadpixel on Saturday 13th January 13:59

[paintman]

I'll take that as a 'No' then.
Good luck.

I note you've done an edit.
I'd suggest you look at the flow chart at the end of that link as it indicates that it would have been "until the 1959 Act, at
which point it became (and remains) maintainable at public expense." & a suggested 'if in doubt' link to another part of the flow chart so reliance on an old law which has been repealed/replaced by later legislation is just going to waste a lot of your time.
I'm also going to suggest your best course of action would be to speak with a legal professional who specialises in these matters.

Edited by paintman on Saturday 13th January 14:10

[anonymous-user]

Am I wrong to think that you can't legally be clamped on private land by anybody, and that a private contractor can't clamp you on the highway unless acting on behalf of the local authority?

[SS2.]

Protection of Freedoms Act 2012 said:

54. Offence of immobilising etc. vehicles

(1) A person commits an offence who, without lawful authority—

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or

(b) moves, or restricts the movement of, such a vehicle by any means,

intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.

(2) The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).

(3) But, where the restriction of the movement of the vehicle is by means of a fixed barrier and the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked, any express or implied consent (whether or not legally binding) of the driver of the vehicle to the restriction is, for the purposes of subsection (1), lawful authority for the restriction.

(4) A person who is entitled to remove a vehicle cannot commit an offence under this section in relation to that vehicle.

(5) A person guilty of an offence under this section is liable—

(a) on conviction on indictment, to a fine,

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(6) In this section “motor vehicle” means a mechanically propelled vehicle or a vehicle designed or adapted for towing by a mechanically propelled vehicle.

[Pica-Pica]

desolate said:

Am I wrong to think that you can't legally be clamped on private land by anybody, and that a private contractor can't clamp you on the highway unless acting on behalf of the local authority?

As I understand it, the quid-pro-quo for not allowing clamping on private car parks, was the allowance of passing registered keepers name to reasonable requesters (e.g. parking firms).

And, yes, it is irritating when we play cat and mouse trying to guess OP’s real question.

[Gavia]

deadpixel said:

paintman said:

The second link goes into considerable detail as regards the Highways Act.

I can see this going the way of other posts where the OP provides a drip feed of pertinent facts which is irritating to say the least.

If you want the best answer then I suggest you post the full facts as to what's actually happened & who is doing the clamping.

I have asked straight forward question, I did not add details to the question that I felt did not bear relevance in determining the answer. On this occasion I am not asking whether or not someone can clamp on the road as you often see on forums people going off on tangents and assumptions based misinterpretations of facts that are provided so I wanted to keep the question simple.

The additional information that I have provided is specifically in response to questions that other posters have asked.

Thank you paintman for the second link, as it has pointed me in the direction of a definition of a "Highway" in Common law :-

A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance. (Halsbury’s Laws 21[1]).

I will do a bit more research on that, I would say a private road that charges a toll would not be classed as a highway in this instance!

Thanks.

Edited by deadpixel on Saturday 13th January 13:59

Why the cryptic approach to this? Your opening post gives the postcode of the street and google maps hasn’t deleted it, it’s just removed the street view element. Given the size of the houses there, I’d suggest you should be more than capable of seeking and paying for advice from a specialist solicitor.

Why even raise clamping? It’s now illegal across the board, so no ide away younthink that’s even a question that could be raised.

[deadpixel]

paintman said:

I'll take that as a 'No' then.
Good luck.

Edited by paintman on Saturday 13th January 13:58

I will provide the info if it helps, I though it would hinder at first and I have been out all morning.

Last year my car broke down (from what I thought was a flat tyre) on a red route, I pulled in to a parking bay which was "No stopping 7am-7pm. except parking for 1hr 7am-4pm" the bay is around 100m long outside some shops and there is only one sign so I didn't actually see it/look at it. I jacked up the car took off the wheel, it turned out not to be a flat tyre but the wheel bearing making a flat tyre sound so I put the wheel back on and drove it carefully home.

I received a PCN last year from TFL, saying that I had parked on a red route when I shouldn't of along with some photo stills as evidence. The pictures where of my car, slightly angled up at the back, carefully timed when I was on my hands and knees jacking up the car from the other side so it looks unattended. I argued my case with TFL, saying that if the looked at the video they would clearly see my struggling with a cheap carjack in the rain but they had none of it.

The next thing I heard was when a private bailiffs were writing letters saying I owed them a few 100 pounds. Then I had one saying that my car was due to be removed, this is why I am asking if they can clamp remove the car as I believe the road I live on is not a public highway, and that is the only place they can clamp/take your car, along with your driveway.

I hope that is enough info, Let me know if you need me to elaborate any further.

[deadpixel]

Gavia said:

Why the cryptic approach to this? Your opening post gives the postcode of the street and google maps hasn’t deleted it, it’s just removed the street view element. Given the size of the houses there, I’d suggest you should be more than capable of seeking and paying for advice from a specialist solicitor.

Why even raise clamping? It’s now illegal across the board, so no ide away younthink that’s even a question that could be raised.

OK This is why I wanted answers to my simple initial question.

Where I live, the size of the houses, types of clamping firm, the how much money one has... ever answer becomes ad hominem as none of these points really bears relevance to the question.

I really appreciate the time and sentiment of some of the posters who are genuinely trying to help, and I apologise for not providing the juicy side of the story but it just does not bear relevance to the OP.