Highways Case Study

Highways Case Study

First Title were requested to consider providing cover in a sale of a Commercial Property that was in use as a Business Park (the Property). Due diligence by the Solicitors had established that the building on the Property fell over the route of an unconstructed (and apparently dedicated) highway (Route A), as illustrated in Drawing No 1.

In seeking to resolve matters, the seller had approached the Local Highway Authority, which had responded that:-

  1. Their records confirmed that Route A had been dedicated as a Highway and apparently continued to exist on paper as a dedicated Highway.
  2. It was thought that the dedication of Route A as a Highway had occurred under the administration of a predecessor Local Highways Authority, whose full records were no longer available.
  3. It was considered possible that Route A may have been superseded by Route B, however due to the lack of available records, it was impossible to confirm whether or not Route A had been the subject of a statutory diversion or stopping up order.

Our underwriting review of the risk noted that:-

  • Route B provided for left and right turning movements of vehicles into Route B, whereas Route A only provided for left turning movements of vehicles. This supported the Local Highway Authority's suggestion that Route A may have been superseded by Route B.
  • It was clear from comparison of the two routes that Route B did not deprive existing developed properties of access.
  • Every indication from the evidence was that Route B provided an alternative to Route A.
  • In terms of the Highways Act, a diversion of a Highway can be sought on the grounds that an alternative route exists.

Having regard to the assessed low level of risk that Route A would be enforced and the existence of a remedy through statutory diversion, First Title's underwriters were able to offer cover in perpetuity against this risk, notwithstanding firstly that the risk had been the subject of an approach to the Local Highways Authority and secondly the loss of the seller's building and the extent of the loss that would eventuate in the event of Route A being enforced.