Unadopted Highway, Private Road or Private Street?
A routine search by a conveyancing solicitor recently uncovered, to the surprise of Highfield Road residents, that the description of their road had been informally changed by the Council from unadopted highway to private street.
The significance of this change is that whereas it is clear that the public has access as of right over a highway, be it adopted or unadopted, the situation is less certain for a road if it is described by the Council as a private street. This is because a private street may be a highway (over which the public has a right of way) or it may be a private road (which is not open to the public). The ambiguity of the description of Highfield Road as a private street resulted in the vendor of a house there being advised to buy an indemnity insurance ( (costing £500) to cover the risk against there being no rights to access to his property.
Why has the Council made the change?
The Council keeps a record of roads which are not maintained by the Council.
The Council is not obliged to keep this record and it is therefore referred to as the non-statutory record or list. Officers of the Council have erroneously, regarded all roads listed on this record as being un-adopted highways. However, over the past 29 years residents in some roads have challenged the standing of this view: some have erected signage and gates. In 1996, and again in 2009, Council Officers took “outside” legal advice (at Council Tax Payers’ expense) on the validity of the non-statutory list of roads. The advice received was, contrary to what officers had been telling residents, that the mere fact of a road being on the “list” is not in itself sufficient to prove highway status, and that other evidence would be necessary to satisfy a court of law that such a road is a highway.
As a result of this advice the Council, when responding to enquires regarding the status of un-adopted rods, such as Highfield Road, will now say they are private streets. (In a number of cases Council Officers have had to concede that roads on the list are private roads because they have not had sufficient evidence to demonstrate highway status).
What can you do?
This unofficial change of policy is unlikely to affect you unless you move house. If you do, we suggest that instead of taking out an indemnity insurance, you ask your solicitor about providing your purchaser with a Statutory Declaration (under the provisions of the Statutory Declarations Act 1835) in which you attest that you have exercised your right of way over the road to access your house. Not only should this satisfy your buyer, but it will be far less expensive.
We will keep members informed of any significant changes in this situation but if you have any further questions we might be able to help.
Note: There are over 40 unadopted roads in Chislehurst which are on the Council’s non-statutory lists.