Buildings oversailing a public highway: licence for construction and alterations

Authors: Ben Elkington, Associate, Real Estate and Martyn Jarvis, Associate, Planning, London

In this post, we consider the requirement to obtain a licence under section 177 of the Highways Act 1980 for construction of, and alterations to, a building which oversails a public highway.

1. Construction of a building oversailing a public highway

Section 177 prohibits the construction of a building over any part of a highway maintainable at the public expense without a licence from the relevant highway authority (a section 177 licence), except in the exercise of statutory powers. Our experience is that this is fairly widely known in the property industry and investors looking to acquire a property comprising a building which overhangs a public highway are conscious of checking whether the relevant licence has been obtained.

Consequences of failure to obtain a section 177 licence for construction:

• Demolition: The ultimate consequence of a breach of the requirement to obtain a section 177 licence is that, should the relevant highway authority be unwilling to grant a retrospective licence, it has the right to serve notice requiring the owner of the building to demolish or otherwise alter the building. Where such a notice is not complied with in the timeframe specified in the notice, the highway authority may carry out the demolition or alterations and recover from the owner the expenses reasonably incurred in doing so. This applies against an owner of the building, even if the building (and associated overhang) was constructed prior to its period of ownership. It is not unusual for a purchaser to require that indemnity insurance is put in place by a seller in the absence of a necessary licence.
• Criminal offence: You may, however, be unaware that constructing a building which oversails any part of a public highway without obtaining a section 177 licence is also a criminal offence. The offence is punishable by a fine not exceeding level 5 on the standard scale (which is currently £5,000). Where the offence is continued after conviction, a further offence is committed, which is punishable by a fine not exceeding £50 for each day on which the offence is continued. Whilst the criminal liability does not pass to subsequent owners of the building, the absence of a licence may give rise to unintended consequences when alterations are made to the building by a subsequent owner.

2. Alterations to a building oversailing a public highway

As well as prohibiting unlicensed construction of a building over any part of a public highway, section 177 also prohibits alterations to such a building without obtaining a section 177 licence or in compliance with a licence previously granted. A separate criminal offence is committed by any person who carries out such alterations without the necessary licence. This may not be surprising in respect of alterations to the part of the building which oversails a public highway; however, the wording of section 177 may be construed in a manner which gives rise to unforeseen outcomes.

• The nature of the alterations: Section 177 does not state whether the alterations which give rise to a criminal offence having been committed (and to the right for the relevant highway authority to require demolition etc) are limited to alterations to the part of the building which oversails a public highway only, or extend to alterations to any part of that building. Therefore, on a strict interpretation of the legislation, one would have to conclude that any alteration to a building of which any part oversails a public highway requires a section 177 licence to be obtained for the works, irrespective of whether the alteration is to the part of the building which oversails.

However, the purpose of section 177 is to ensure that users of a public highway are not endangered as a result of a building oversailing that public highway, or by any works carried out to such a building. Therefore, in circumstances where the alteration does not relate to the part of the building which oversails the public highway (or to any part of the building which may impact on that oversailing part), a more reasonable view is that a section 177 licence would not be required for those works and that, in the absence of any identifiable risk to the users of the public highway, the relevant highway authority would not be entitled to adopt the strict interpretation of section 177.

• Further considerations:  When proposing to alter a building which oversails any part of a public highway, you should carefully consider whether the intended alterations are to, or affect, the part of the building which oversails. To the extent that they are, you will need to obtain a section 177 licence from the relevant highway authority to authorise the alterations and comply with the conditions in that licence (or a licence previously granted) when carrying out the works.

It is always sensible to discuss the proposed works with the relevant highway authority and with your lawyer prior to commencing them. 

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