Highway: What Counts as a Highway in England?

In planning, the word highway means more than an adopted road maintained by the council. A highway is fundamentally about a public right of passage. It can include a road, footpath or other route over which the public has highway rights.

The Highways Act 1980 does not give a very helpful standalone definition: section 328 says that, unless the context requires otherwise, a highway means the whole or part of a highway other than a ferry or waterway. In practice the nature of the public right, together with the statutory provisions and common law, is what matters.

Adopted and unadopted are about maintenance

Whether a route is a highway and whether it is maintainable at the public expense are different questions. Section 36 of the Highways Act 1980 deals with highways maintainable at public expense.

An adopted road is normally maintained by the highway authority. An unadopted road is not maintained at public expense, but it may still carry public highway rights. That is why a sign saying “private road” does not by itself prove that the public has no right to pass along it.

Equally, genuinely private land can have no public highway right at all. The words “private road”, “private street” and “unadopted road” are often used loosely, so the legal status should be checked rather than guessed from the name or appearance of the route.

You can use GeoPlace’s FindMyStreet service as a useful starting point for street and maintenance information. For a property transaction or disputed highway status, formal highway searches and legal advice may still be needed.

Can public use create a highway?

Yes. Under section 31 of the Highways Act 1980, where a way has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, it is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention to dedicate it.

Twenty years is the statutory presumption; it is not a universal minimum period for every possible common-law dedication.

There is also no general rule that every private road must be gated for one day each year. An owner who wants to prevent public use from giving rise to a presumption of dedication needs evidence showing a lack of intention to dedicate or can use the statutory deposit and declaration procedure under section 31(6). A gate, notice or interruption may be relevant evidence, but the legal effect depends on the circumstances.

A highway is not necessarily a road for vehicles

Public highway rights exist in different forms. The definitive map records public rights of way such as footpaths, bridleways, restricted byways and byways open to all traffic. A footpath is therefore capable of being a highway even though cars have no right to use it.

This distinction matters in planning because some permitted development rules refer specifically to a highway used by vehicular traffic, not every highway of any kind.

Fences beside a highway

For example, Class A of Part 2 of the GPDO normally limits a gate, fence, wall or other means of enclosure to 1 metre where it is adjacent to a highway used by vehicular traffic, compared with 2 metres elsewhere, subject to the other limitations and conditions.

The important point is that an unadopted road can still be a highway used by vehicular traffic. You cannot safely assume the 2 metre limit applies simply because the council does not maintain the road.

Who owns the highway?

Highway status does not automatically tell you who owns the subsoil. For highways maintainable at public expense, section 263 of the Highways Act 1980 provides for the highway itself to vest in the highway authority, subject to the statutory provisions, but the underlying freehold position can be more complicated.

For planning purposes, keep the questions separate: is it a highway, what public rights exist, who maintains it, and who owns the land? They are related, but they are not the same question.

Highway Page Updated: 27th August 2026