The prospect of an unexpected ‘highway gap’ emerging at a site is enough to cause even the most experienced housebuilder to lose sleep.

A ‘highway gap’ arises where an overlay of a site against a highways search reveals third-party land between the site boundary and the highway upon which access to the site depends. If the development site does not enjoy rights of way over that land, the implications can be severe. In a worst-case scenario, the third-party landowner will use the gap as a ransom strip.

Where such a ‘highway gap’ exists, there are a number of steps which a developer should consider:

1.  Is there really a gap?

If the overlay has been done using layout plans based on the topographical survey, this may give a false result. All title and highways plans use an OS base. Any overlay suggesting a gap should be double-checked using an OS based layout before you do anything further.

2.  Is the gap registered?

A SIM search will reveal whether the highway gap comprises registered or unregistered land.

If registered, the title of the gap should be closely investigated for easements/covenants that may benefit/burden the development site. The developer must not put any registered proprietor of the gap on notice as to the advantage they may hold over the development site.

3.  Has there been a highways search error?

If the “highway gap” seems illogical, especially if the area in question is being actively maintained by the highway authority, check with the highway authority whether their highway plans are correct or whether the area in question should have been shown as part of the adopted highway.

4.  Has there been a Land Registry plan error?

The red line boundaries on title plans will reflect only what the Land Registry has concluded would be a ‘reasonable interpretation’ of the boundaries from the pre-registration deeds.

Given this, it is important to check the property’s title documents to establish whether the Land Registry has erred in determining the title’s boundaries. If that is the case, the developer can apply to the Land Registry to amend this error. Such applications will be substantially easier if step 1 above revealed the gap to be unregistered.

5.  Will the Highway Authority use its section 228 Highways Act powers to adopt?

This is likely to apply only where the gap is unregistered. In most cases the highway authority will only exercise these powers after the access works are completed, so the developer would be carrying out works at risk.

6.  Can title indemnity insurance be obtained?

It may be possible to obtain a policy that covers the risk of using the gap for access purposes without a documented right. The premium quotes will likely depend on the extent to which the site is dependent upon the gap in question and whether the gap is registered or not (insurers will be more sympathetic to applications if the gap in question Is unregistered).

If you are considering indemnity insurance, ensure that the policy permits you to disclose the situation to the highway authority and to convince the highway authority to agree to use its powers under s228 to seek adoption.