Is this Private road a public Highway?

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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

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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.

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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.

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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...

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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)

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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.

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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

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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.

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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.

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Gavia said:

This is farcical. Your whole situation is of your own making and your approach is completely irrelevant. You’re looking for some magical technicality, which simply doesn’t exist. Why didn’t you pay the ticket when your appeal failed? It’s not a ticket issued by a PPC.

I know that this is likely to be picked on by others, but I find it quite bizarre that given your personal circumstances, you seem incapable of understanding the difference between “were” and “where”, as well as “of” and “have”.

The "Technicality" that you refer to is whether the enforcement agents have committed and offence under the "Taking Control of Goods Regulations 2013"

Edited by deadpixel on Saturday 13th January 15:51

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Gavia said:

This is farcical. Your whole situation is of your own making and your approach is completely irrelevant. You’re looking for some magical technicality, which simply doesn’t exist. Why didn’t you pay the ticket when your appeal failed? It’s not a ticket issued by a PPC.

I know that this is likely to be picked on by others, but I find it quite bizarre that given your personal circumstances, you seem incapable of understanding the difference between “were” and “where”, as well as “of” and “have”.

The "Technicality" that you refer to is whether the enforcement agents have committed and offense under the "Taking Control of Goods Regulations 2013"

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Breadvan72 said:

Your car did not break down. You heard a noise. You stopped to check it out and chose to stop in a restricted area. You could have seen straight way that the tyre was not flat. I am not surprised that you received a a ticket. Pay up.

Wait a minute, What's this I see?! The Judge, Jury and executioner have turned up all in the same car!

It is this level of sanctimony that encourage me to keep my OP straight forward and simple without irrelevant facts, I never intended people to feel the need to weigh up whether or not I was guilty of a parking violation and subsequent events.

When driving along and hear a loud bang from a wheel followed by grinding noises, failing to stop would be a rather idiotic thing to do, In fact I would say you owe a duty of car to your passengers and other road users to determine and evaluate the fault. It turns out that me material of a component of my car had indeed broke down. Each to their own I suppose.

Many thanks to the constructive posters, its good to see things from different perspectives.

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Breadvan72 said:

Bloke lives in poshest part of Dulwich but is semi literate, thinks his car has broken down when a wheel bearing makes a noise, and is too tightfisted to pay a red route fine and so has his car lifted. Comedyfest.

Again, Ad hominem, inaccurate and not relevant to the OP.

Edited by deadpixel on Saturday 13th January 16:00

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paintman said:

Oh FFS. I see more drip feed info while I was composing my last post. So in addition to what you condescended to tell me the position is that they've actually got your car.

Have fun.

Please believe me, I had no intention to come across as condescending, my sole intention was to keep things simple and no wasting people time by providing immaterial information and try avoid irrelevant posts from nonconstructive individuals saying, "You're guilty, pay up,' and discussing the size of property in the neighborhood.

And no, they don't the car, its in a locked garage for the time being.

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Red Devil said:

The Act you quoted neither mentions nor defines private property.
Schedule 12 Part 1 Section 9 simply specifies where an enforcement agent may take control.

What is the difference between a private street and a highway?
Roads/footways and footpaths can ONLY exist in one of three distinct legal types:-
1. A highway maintainable at the public expense
2. A highway maintainable at private expense
3. A private street/footway or footpath
No 3 is one which the public have no rights to use unless permission is given by the owner. ie these have the same status as a path or drive at someone’s home.

The difference between 1 and 2 is who maintains them. In all other respects they are identical.
The above means it is the RIGHT of the public to use a road/footway/footpath that is crucial not who maintains it

My guess FWIW is that College Road will fall into category #2.
You can't park a SORNed vehicle on it which lends credence to it having highway status.
I reckon your question is best directed at the Dulwich Estate.
I'm sure it has a legal department which will have had to grapple with status issues before now.

Thanks for your post, I believe the below covers this.

Section 328(1) of the Highways Act 1980 provides that in that Act, except where the context otherwise requires, "highway" means the whole or part of a highway other than a ferry or waterway. Section 329(1) defines "bridleway," "carriageway," "footpath" and "footway" respectively as meaning a way over which the public have a right of way on horseback, for the passage of vehicles or on foot only. As the term "highway" is not itself defined, it is necessary to apply the common law meaning of the word:
"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]).

From that I determine that as you have to pay to use the road, it could not indeed be classed as a Highway.

On this basis, an Enforcement Agent can only legally clamp your car in a highway or on land where you usually live or carry on trade or business, so by clamping a vehicle in this instance, they would be breaking the law.

Paragraph 9 of the Tribunals Courts and Enforcement Act 2007 states;

9 An enforcement agent may take control of goods only if they are—

(a) on premises that he has power to enter under this Schedule, or
(b) on a highway.


Clamping a car on private land in circumstances other than the above commits an offence under section 54 of the Protection of Freedoms Act 2012, which states;

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.

I think that all joins up sufficiently assuming it all makes sense and is accurate, I would be interested to hear constructive thoughts on the matter.

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Red Devil said:

I think you may be pinning your hopes on a potentially shaky foundations.
Payment is not the relevant test. It is whether the public has a right of way.
See Suffolk County Council v Mason [1979] AC 705

Have you done what I suggested and contacted the Dulwich Estate?
They are more likely to know the score than you or I.

It is possible I am indeed. I contacted the estate last week, their surveyor will be back in next week so I will call again.

Thanks.

Edited by deadpixel on Sunday 14th January 01:31

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essayer said:

I suspect ‘enforcing a county/high court judgement’ counts as reasonable authority under the clamping laws

Seriously, you won’t beat the system. Why won’t you pay the fine/fees, then appeal it using whatever means ?

They are not High Court Enforcement, and there is no judgement or warrant. They are private enforcement agents.

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Marcellus said:

Breadvan72 said:

You may be misreading. The OP's red route bust happened elsewhere, but he lives in Dulwich Village and is worried about having his car bagged because he hasn't paid a red route fine.

So all of this was completely irrelevant as he got the red route fine elsewhere?

deadpixel said:

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

I deliberately kept my OP simple as I did not want to distract posters with information that bore no relevance to the outcome my question, and indeed waste peoples time second guessing and misleading each other. It is a shame that so many people like to use this forum to judge and disseminate poorly informed opinions, with little basis on fact. I greatly appreciate the time and effort that some posters go to in providing verifiable information along with sources, however the sentiment of many posters leaves allot to be desired.

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Gavia said:

In a nutshell, yes.

The OP hasn’t paid a red route fine from elsewhere and is now worried that his car will be taken by the enforcement officers. He’s trying to claim that the road he lives on is private and therefore they’re not allowed onto it, or some or other bks.

Not Strictly true, there is no dispute that the road is private, what I wish to establish is if the road would be considered a "Highway" with respect to The Highways Act 1980. This significance bears relevance as if it is not classed as a "Highway" the Enforcement Agents would not be able to seize a vehicle that is on private property as defined in Paragraph 14(6) of the Tribunals Courts and Enforcement Act 2007. They would be committing an offence under section 54 of the Protection of Freedoms Act 2012. An important distinction I would say.

I have now instructed a barrister to investigate these matters, so I will keep you posted.