Public Highways

Speech by Bob Russell MP delivered to Adjournment Debate - Hansard on Fri 7th Feb 2003

Dick Turpin was an infamous villain of the 18th century, a ruthless highwayman and a nasty piece of work. For a time, he operated in Essex-at the London end of the county, I hasten to add. Today, I am going to tell the House a modern story of highway robbery, the value of which is considerably greater to the perpetrator, if he is allowed to get away with it, than the combined proceeds that Dick Turpin accumulated in a lifetime of crime. If this 21st century highway robbery is allowed to happen, the national precedent that it will set should sound alarm bells for all Members who represent urban constituencies that contain backland sites similar to those in my Colchester constituency. I am sure that the Minister can think of such an example in Plymouth. Nobody-including planning lawyers, highway experts and others with a wealth of experience in development matters-to whom I have related this story has ever come across anything like it. They are unanimous in not believing it. Worryingly, the public relations man for a national builder has already asked me to let him know what happens, because his client is interested. I bet he is!

The highway robbery in this case relates to private property developers appropriating the public highway to develop land, which they would otherwise not be able to do because they cannot satisfy the minimum highway standards where their land joins an established road. They do not have enough land in their ownership to comply with the highway requirements of the site in question, so with the connivance of the local council-which, it has to be said, has woefully failed the local community-they have decided simply to grab a piece of the road outside about a dozen privately owned houses to overcome their problem. Double yellow lines, to make parking illegal, are not an alternative, in either highway or road safety terms, because this is not a method that complies with current highway regulations for new junctions where vision sight lines for drivers have to be secured permanently, and certainly not in the case of an access road serving an estate of between 60 and 110 dwellings. Even if double yellow lines were a solution, the Minister will confirm that the granting of road traffic orders is not in the gift of developers or planners. Therefore such a solution-in this case, one that is totally inadequate and inappropriate-should not even be considered when contemplating granting a planning approval.

Let me set the scene; it is one that is to be found in many similar locations around the country. The St. George's area of New Town, Colchester, was developed in the early years of the 20th century. High density housing was built alongside roads laid out on a grid system. For about 100 years, the backland behind rows of terraced and semi-detached houses was used for private allotments and later also for lock-up garages. These were accessed by a single track running between the houses in Barrington road. Over the past 20 to 30 years, one developer, Mr. Gordon Parker, has by various means acquired a large amount of the backland plots, many of which had fallen into an unkempt condition. Over time, they had become a wilderness and a dumping ground. Mr. Parker is not your usual property developer. He specialises in assembling parcels of land by reaching the parts to which others choose not to go. The methods by which he achieves this by stealth are something of a mystery. He has even included land owned by the local church. He is not the most popular man in Colchester. Indeed, over the years, his performance in relation to property dealings and developments has made him very unpopular. His past goes before him. Anyway, he managed to assemble enough of the backland to think that he could secure planning consent. But he could not. He was thwarted for years because he simply could not satisfy either the planning regulations or the highway requirements.

Then a few months ago, for reasons that I need not mention today, all the planning objections were amazingly resolved. Only weeks before, there had been total rejection of the scheme as an appeal loomed. However, there remained the seemingly insurmountable problem of hopelessly inadequate access to serve a new housing estate that could eventually contain 110 residences.

A cunning plan was then hatched by the developer. It would, of course, be outrageous to suggest that the idea was put forward by someone in either Colchester borough council or Essex County Highways. An easy solution was found, which would not cost the developer a penny in land purchase: grab a chunk of the public road, narrow a section of Barrington road to a single width, widen the pavement in front of half a dozen houses either side of the track so that the vision line for drivers entering and leaving the new estate access road is permanently secured across it, and hey presto, at a stroke, the previously impregnable highway objections are overcome-to which I, and the entire local community, say, "Oh no they aren't!"

Solving the developers' problem will result in a lasting, extremely serious road safety hazard that cannot possibly comply with the minimum highway standards that the Ministry of Transport must demand. That is why it is so important for what may appear to be a local issue to be drawn to the personal attention of the Minister, in the hope that he and his officials can prevent it from happening here, and to ensure that measures exist to prevent others from using the same procedure elsewhere.

The House of Commons Library has given me some background information to the Highways Act 1980. Section 75, which deals with the variation of widths of carriageways and footpaths, was never intended to be used in the manner proposed here. The purpose of the Act was to enable highway authorities to approve works that would benefit the community. In this case the benefit is not to the community, but to a private property developer.

The Act makes it clear that a highway is there to enable vehicles to pass and re-pass. Specifically, section 130 places the highway authority under a duty-I repeat, a duty-to assert the rights of the public to pass and re-pass. That right, in terms of commonsense daily use, will be removed if the road is narrowed to a single carriageway. Two-way traffic will have to compete for use of the same single-track stretch of road, over a distance that I estimate to be perhaps twice the length of the Chamber, into which the new junction-serving 59 dwellings to start with, and perhaps another 50 if the rest of the site is developed in due course-will emerge.

This is a recipe for disaster. Far from this cunning highway arrangement being a boost to road safety, the consequence will be the creation of serious road safety issues in the immediate vicinity. I emphasise that there are two schools respectively 100 yd and 50 yd on each side of the new junction that the developer wants to create. They are St George's infant school and St George's junior school; the latter celebrates its centenary in two months.

We all know of the serious congestion and road safety problems that already exist outside schools. To make them dangerously worse, as this scheme will, is an outrage. Traffic calming measures had to be introduced because of the number of accidents causing injury that were occurring. Once the area has been made safer, why introduce new dangers?

Two-way traffic will have to manoeuvre through a single-width carriageway in Barrington road, with a new junction generating traffic entering and leaving the new estate. To add to the safety dangers, the single-width section of Barrington road at its northern end will meet an existing T-junction with two-way traffic entering and leaving it. Traffic turning right out of the T-junction to go south along Barrington road, towards St George's infant school, will be able to do so only by being on the wrong side of the road.

Alongside the T-junction is the corner of the junior school playground, with gates for pupils only yards away. It is already a dangerous corner; the new single-width carriageway carrying two-way traffic will make it even more dangerous.

If the Minister or his officials will accept my invitation to visit the setting for this crazy proposal-it is worse than crazy: a coroner could construe it as corporately or criminally negligent, in terms of those who designed and approved it-I have every confidence that there is no way it will receive Department for Transport approval. Nor would the Government be prepared to see it repeated throughout the country. It is because of my concern about the national precedent that this scheme would unleash that I urge the Minister to do everything in his power to prevent it.

I am grateful that the Minister responding to this debate has responsibility for road safety issues. There is still time to prevent what the local council has sanctioned, because the highway conditions of the planning approval have yet to be finalised. In truth, the proposed junction layout must be rejected, and the developer will have to find more traditional methods to secure an access into his land: by exclusively using land to which he has legal ownership, not by grabbing part of the public highway.

The local community-strongly represented by the St George's residents association, the congregation of the nearby St Stephen's church, borough councillors for New Town ward, Colchester civic society, and the parents, staff, governors and pupils of St George's infant and junior schools-would be delighted if the Minister promised to veto the proposed junction arrangements, which are in breach of highways legislation, and of his Department's regulations and requirements for minimum standards. If he cannot go that far today, we would welcome a full public inquiry into whether the appropriation of the public highway by a private developer should be allowed. The national precedent involved means that we cannot allow this scheme to proceed unchallenged.

Another consequence of this scheme will be the loss of about 25 on-street parking places-on either side of Barrington road, where the plan is to narrow it to a single carriageway-in a neighbourhood where parking is already at a premium. This will add to the traffic, parking and road safety problems. One of those who will be seriously affected is a disabled man, who will no longer be able to get a car to his front door. Every vehicle delivering to the street, be it the refuse freighter or the milk float, will also experience problems. They will be unable to stop at houses along the single-carriageway stretch, which will be about 75 yd long.

I recognise that the root cause of the problem does not come within the remit of the Minister's Department; local government planning decisions are for another arm of government. The manner in which this application was handled leaves a lot to be desired, to put it mildly. Such misgivings may well be pursued elsewhere. There is much that I would like to say about how the planning process was contaminated in determining this application. In more than 30 years of elected public office in Colchester, I have never before seen such arm-twisting by officers, which has led to a majority of councillors on the planning committee performing an undignified somersault. That issue falls outside the terms of my debate and of the Minister's remit, but roads are totally within the Department for Transport's jurisdiction. That is why the Minister who is replying is from the Department for Transport, and not from the Office of the Deputy Prime Minister.

Even with the support of officers who should know better, and of councillors coerced into changing their minds, no developer has the power to appropriate a public highway to the detriment of those whose freeholds front it, in order to enable the building of a new housing estate. The Minister will be aware that when a developer wishes to develop a site-for housing or whatever-for which he does not have the necessary land to create a safe junction that complies with highway regulations, he has to acquire the land that he needs. In such instances, the land is referred to as a ransom strip. Its size is not important-what is important is how its acquisition will enable a development to proceed that otherwise could not. The value of a ransom strip can range from a third of the value of the land to be developed, up to even half in some circumstances.

The value of the area of public highway in Barrington road that Mr. Parker and his fellow developers have their sights on appropriating in reality, though not through legal ownership-and without paying a penny for it-ranges from a minimum of £600,000 to more than £1 million. The figures, the second of which is probably the more accurate, are arrived at by using the ransom strip formula. For easy maths, let us assume that the value of a building plot in this part of Colchester is £30,000, and that one third is thus valued at £10,000. If we multiply that by the approximate 60 residential units on the site, the value of the appropriated public highway is a minimum of £600,000. This valuation is at the lower level. If we now add in the potential near doubling of the estate in due course, the value of the highway land to the developers is in excess of £1 million. Yet the developers have got it all for nothing!

Essex county council's web page on the general subject of the ownership of highway land states:

"Although the area of land forms part of the publicly maintainable highway it is very often not actually owned by the County Council. In the case of an established property (ie prewar) there is a common law presumption that the land will revert back to the abutting land owners should highway rights be removed."

The area of public highway that the developers intend taking away from the public-a road over which vehicular traffic has travelled for the past 100 years-is outside 12 privately owned homes. It is not outside land or property owned by the developers; thus they have no legal right to either the surface or the soil of the highway. In law, the soil beneath the highway is owned by the frontagers, not those who own land round the back.

I am advised by a leading authority on planning law that Mr. Parker, and those who have joined him in his quest for development, cannot remove the rights of Her Majesty's subjects to drive their vehicles along the Queen's highway, and the planning authority has no power to withdraw the public highway rights enjoyed both by frontagers and road users in order to facilitate the proposed development. To do so would be against section 130 of the Highways Act 1980, and perhaps other sections of the same Act and other Acts of Parliament. I am not a lawyer, but lawyers tell me that that is the case.

I hope that the Minister can confirm that. Failing that, will he give an undertaking that he will have the legal position investigated? If not, what is there to stop any developer taking it upon himself to decide to appropriate any part of the highway in situations such as I have described? An easily swayed local authority will not stop them.

It is claimed by the council that the section of Barrington road in question will still be a highway, albeit one that cannot carry vehicular traffic, so there is no need to apply for a road closure order or stopping-up order, as set out in section 247 of the Town and Country Planning Act 1990. The legal advice that I have been given says that is somewhat disingenuous of the local authority. I hope that the Minister agrees with that legal opinion, and that he will confirm that local residents must be given the legal right to object to the loss of the public highway in front of their homes.

Section 247 states that notice of the making of an order must be published in a local paper, and that notices must be displayed at the ends of the highway that is intended to be stopped up. None of that happened. The council will, in effect, be ignoring the spirit of the Act, because it is claimed that the highway will not be stopped up, even though it will be physically impossible to drive vehicles along the area of blocked-up highway.

I understand that a stopping-up order has to be confirmed by the Department of Transport. If an order was sought, legal objections could of course be made and a public inquiry might result. Anybody with an ounce of common sense who viewed this disgraceful state of affairs would have no hesitation in finding in favour of the residents-hence the twists and turns of the local authority to prevent its handiwork being put to public examination.

The council, in league with a property developer, is denying residents natural justice, if not their legal rights. It not only aims to deprive residents of the road in front of their homes, but it is misusing the law-at any rate, in spirit-so that its dastardly deed cannot be challenged. Or can it? After today's debate, I hope that it can.

If there is a loophole, it needs to be blocked. It is clear that we cannot rely on the planning and local highway authorities. The interests of the local community, especially those whose homes front that Alice in Wonderland road arrangement, have been ignored. Worse than that, of course, is the stark realisation that, every day, hundreds of children attending the two nearby schools will be put in danger.

People whose homes front the area of public highway that a private developer intends taking from them are flabbergasted that such a proposal could even have been considered by the local council, let alone approved. The wider local community looks to the Minister with responsibilities for road safety to prevent a serious road safety threat from becoming a reality. Nationally, I hope that the Government will prevent this case from becoming a precedent for other private developers to appropriate sections of the public highway.

The proposed configuration of the overall road layout does not appear to comply with national guidelines relating to road junctions. That being so, how can a local highway authority ride roughshod over them? In such circumstances, surely it is the role of central Government to insist that national standards are upheld.