Dedication of Ancillary Highway Infrastructure

It is well established that the physical surface of land dedicated as highway maintainable at the public expense vests in the Highway Authority for the area concerned (the HA). The most common provisions used to dedicate highway as being maintainable at the public expense are those set out at section 38 of the Highways Act 1980 (the Act). The length and width of the area to be dedicated will be shown on drawings approved by the HA which are then annexed to an agreement made under section 38, the depth of the area to be dedicated is traditionally thought as being “the top two spits” (spade depths) under the surface of the highway.  

What is often overlooked is that in addition to the above dedicated area other infrastructure is potentially maintainable by the HA. Notably section 264 of the Act vests the drains belonging to a road in the HA. Ancillary rights to enable the HA to construct such drains as it considers necessary in land adjoining the highway together with powers to scour, cleanse and keep open such drains are set out under section 100 of the Act.  

If powers are exercised under section 100 there is arguably no need for the HA to acquire an easement to drain over, onto or through adjoining land (although compensation will be payable by the HA). Despite these powers there has been a recent trend for HAs to require the grant of express rights of drainage as a condition of entering into section 38 agreements. Such agreements will typically oblige the landowner to construct the works and create a legal easement benefiting the highway over the landowner’s adjoining land.   

If powers of entry are exercised under contractual provisions (rather than the statutory regime) it is essential that landowners consider a number of issues, including:- 

• that appropriate covenants are offered by the HA regarding the exercise of such powers 
• that they have defined remedies against the HA in the event of breach of such covenants (the statutory compensation under section 100(3) is unlikely to be payable) and
• if the land over which such easements are granted forms part of a potential development site the landowner will need to ensure that the grant and registration of a legal easement against the landowner’s title does not interfere with its future dealings of the land concerned.