Section 228 of the Highways Act has essentially two methods to adopt a private street after the execution of street works, which are 228 (1) and 228 (7). There are many frustrating and, from my experience, dangerous ways local authorities can abuse this legislation. One of the biggest problems in s.228 is the abstract definition of street, which casts such broad a net including words such as way, lane, highway (again without definition) that allow local governments to include private drives, private footpaths to front doors, and even private gardens (more on this below).

The City of York recently adopted my drive using section 228 (7) of the Highways Act, and the council still to this day refuses to acknowledge that the drive is within my title deeds. This just means they are aware their actions have been wrong. Unfortunately, I invested in the judicial review process only to be told that the council’s decision to use this legislation was lawful, and now my drive, going nowhere, serving no one, is maintained by the public's expense. This is nonsense, of course. The truth of the matter is that a judge is hard pressed to go against a local authority, which would result in wasting thousands in public money. It feels awful to lose when the arguments used against you are piss poor and everyone around you knows that you’ve been wronged by an incompetent council. I have the full transcript of my judicial review and I am happy to share it with anyone who is interested. The transcript and judgment will eventually go online so everyone can see how this piece of legislation can rob you of your land. I also have evidence that shows the council was being dishonest in their proceedings. The good news is the City of York Council is being investigated by auditors because of the adoption of Government House Road. This isn’t the first time the auditors are raising their eyebrows, nor will it be the last, as the council are attempting to use s.228 again to steal private land.

There are large, private open gardens off a section of Hull Road in York (photo above) that the council plans on adopting using s.228 (1). Back in 2005, the council created a cycle path on a section of this private garden area. They did it without consent from the landowner, without even establishing a public right of way, and with no legal powers whatsoever. They created another on this private land the following year (according to Google maps), again following no statutory process. Because the Council has been in trouble with the LGO in 2019 for keeping poor records, they LGO has given them until the end of the year to fix their records, which means they have to correct their prolific errors. Instead of doing it the right way, the council is misusing s.228 to cover up highway development mistakes. If anyone is interested in this, they can watch the Executive Decision Meeting by clicking here. The landowners cannot afford to allow this to happen, and hopefully they will oppose the decision. If they don’t, the council will continue to abuse this power and keep sweeping up private land they unlawfully carry out works on. The council claim they had external legal advice, without stating what that advice was, so I’m sure they are misleading everyone, yet again. According to the Highways Act and the more recent case Barlow v. Wigan Council where the judge concluded “that if a highway authority built a highway, it counts as a ‘highway maintainable at public expense’ regardless of when or why it was built or designated a highway.” Therefore, by legal default, the council cannot build a private street necessary to trigger s.228 (1). The Local Highways Authority knows this, but they also know the council can do unlawful things until a judge intervenes, which isn’t likely. These landowners have a solution, and I have been helping them with a string of others.

Local governments can easily abuse Section 228 of the Highways Act purely because of the unspecific wording in the legislation, which needs reforming by Parliament and why I’ve created this petition. As I mentioned above, a local council can slap down a bike path on private land and instantly call it a street. What’s stopping the council creating an extensive bike network on the same land using the same process? We can also see from s.228 (7) that the majority of rateable value doesn’t equal democracy.  In my case, one resident rallied the neighbours to have my cul-de-sac adopted, including my drive, without my knowledge or consent. My land has an entirely new function, and I wasn’t even consulted. This also can be the case if you live on a private road that is also the access for a large farm or a private school. A large estate landowner could have the entire road adopted without neighbours’ knowledge or consent purely because they could make up the ‘majority in rateable value of the owners of premises in the street’, leaving you without a voice of objection. It also could be the case where you own the end property on the private road, and the s.228 adoption leads to the road being extended for more housing, meaning the property you bought because it was private with low traffic becomes a through road linking your drive to a larger road network with no compensation at all. Section 228 of the Highways Act is a piece of legislation does not fairly represent each landowner, and effectively restricts challenge specifically for the landowner who has something to lose. It’s basically a big fat dump on Article 1 of the Human Rights Act, and was even morally questioned by QC Sauvain, author of the famous legal text ‘Highway Law’.

Let’s look at the case Rusby v Harr (2006) where a small patch of private garden was adopted as a highway using s.228 (1) of the Highways Act. The landowner, Rusby, did not object to the s.228 (1) stating she didn’t see the notice, but it resulted in a conflict with the owner of the adjacent field who sold the land for a new development of houses. The judge in the case said the s.228 adoption would not have gone ahead if she had opposed it, and I can quite easily state that it would have. Fighting a council decision means fighting a power with unlimited funds who can source the best barristers, while using disturbing tactics to win. Below are photos of Rusby’s property before and after the garden (her land) was adopted using s.228.

Please click 29 Brookfield before adoption. 

Please click 29 Brookfield after adoption.

Please click here and type 29 Brookfield, Hampsthwaite, Harrogate, North Yorkshire, England, HG3 2EF, GBR

Surely you must now know landowners have no chance to protect their property against s.228. Can you imagine the damage this piece of legislation can cause from morally incompetent or just plain incompetent local councils? Please, please sign my UK petition for this legislation to be changed by clicking here.