Grania Langdon-Down reports on the key issues facing solicitors working in the niche area of highways law


New Department for Transport guidance emphasising that streets are for pedestrians and that cars must fit in around them has thrown up some interesting issues for practitioners specialising in the niche area of highways law.



Michael Orlik, a consultant with Stratford-upon-Avon law firm Lodders and author of The Introduction to Highways Law, now into its third edition, says: ‘Under the new Manual For Streets, the emphasis on building wide roads with good visibility has gone. There is a theory gaining ground that the more dangerous a road is, the slower people will drive.’



This theory has been put into practice, he says, in shared-space schemes in London, where roads have been cleared of markings, signs and pedestrian barriers. Dubbed ‘naked streets’ by the media, drivers have to go slowly because they are sharing the road with pedestrians.



When it comes to new developments, Mr Orlik says there is always tension between house builders and the local authorities over the conditions under which the authorities will adopt the roads. ‘At the same time, the government is pressing for more homes to be built,’ he says. ‘By allowing narrower roads and making the standards for adoption easier, it will free up more land for development and make it less expensive to build the houses. It is an interesting trend which will take several months to settle in.’



Highways law forms one of the teams within Lodders commercial property department, with three solicitors. Mr Orlik built up his niche practice after spotting an opportunity in the market when he moved from local government into private practice. ‘This is a very important area of law but there were very few people specialising in it,’ he says.



He adds that a historical background is very useful – he has a history degree – because the work can involve delving into inclosure awards and tithe maps, and finding out the oral history surrounding rights of ways. ‘Showing an error was made in a definitive map of rights of way half a century after it was drawn up is certainly difficult, but we have had two successes in this field,’ he says.



Emrys Parry, head of the planning and regeneration department at Bond Pearce, is one of four fee-earners specialising in highways. Clients include highways authorities, local councils and private developers. Much of their work involves highways stopping-up orders (removing public rights of way) for major redevelopments and traffic regulation orders for yellow lines.



Mr Parry, former legal director of the Land Authority for Wales and a specialist in compulsory purchase, has 30 years’ experience working both in public and private organisations. He says: ‘Highways law is not cutting edge or desperately complex work. But it is technical and procedural, and it has to be right or you don’t get the orders – and they take a minimum of five months to get.’



Solicitor Maggie Smith joined Mr Orlik’s team at Lodders four years ago from a property litigation background. She says: ‘Highways tend to suggest only roads, but it also covers footpaths and bridleways, so we also get issues over rights of way and boundaries.



‘The job requires advocacy skills, particularly as planning inquiries are a growing industry, and I enjoy being on my feet.’



Last year, she won a breakthrough case in Nottinghamshire when she established before a district judge that new residential estate roads can be adopted even if they are narrower than the county’s previously inflexible standard of 5.5 metres wide.



Nicholas Hancox left East Anglian firm Mills & Reeve in 2003 to set up as a sole practitioner specialising in highways, compulsory purchase, local government and education law. He advises parish councils, private property owners and highway users on disputes with highways authorities. In 2002, he co-authored Highways Law and Practice and, in 2004, he was appointed as consultant editor of the highways volume of Halsbury’s Laws of England.



Mr Hancox, who also acts as a consultant with Birketts in Norwich, says: ‘I built up my knowledge of highways law by working for local authorities. I then went into private practice and, by 2003, I had reached the stage in my life when I could afford to set up on my own. I took the risk and I am still here four years later.



‘I am fascinated by highways law. You have to enjoy historical research. It often comes down to who allowed what to happen when, so you can be looking at old deeds and maps to find out the situation centuries ago.’



For Mr Orlik, the bulk of his work involves advising clients on laying out new roads and on ‘ransom’ demands over strips of land needed for developments or for roads. ‘Problems can also arise over the ownership of roads because you can only dedicate a road for adoption by the local authority if you own it,’ he says. ‘You may have a farmer who has sold some land for development, but it isn’t clear who owns the lane to reach it.’



Last year, he successfully challenged the local authority’s right to close off access to a highway as part of the A14 Stowmarket improvements and replace it with a private road. He argued that the alternative access was not ‘reasonably convenient’ for the five people who would have had to share the cost of maintaining it.



A quarter of his work involves public footpaths, including diversions and new claims. Problems have arisen because the government has not changed the search forms, even though it has just re-issued them for the home information packs.



‘The form just asks if there is a footpath crossing the land. It doesn’t ask if there are any claims pending and some county councils are years behind with claims,’ he says. ‘Warwickshire is ten years behind and has several hundred claims pending – so you could buy a piece of land and find you have bought a whole heap of problems.’