Definitions of streets, highways and buildings

The law and best practice for the renaming of streets and buildings (December 2020) page 37

Act	Definition of a Street and Commentary	Definition of a Highway and Commentary	Definition of a Building and Commentary
The First Scheme	There are separate definitions under the 1847 Act and the 1875 Act. It is considered that the 1875 Act definition applies: “Street” includes any highway…and any public bridge, and any road lane footway square court alley or passage whether a thoroughfare or not	The 1847 Act definition of “street” does not include the term “highway”. It is considered that the 1875 Act definition of “street” applies, and this does include the term “highway”. There is no statutory definition of “highway” under the 1875 Act. All parts of the 1875 Act dealing with highways were repealed by the Highways Act 1959, this Act was subsequently consolidated into the Highways Act 1980.	Required to number “the houses and buildings in all or any of the streets”. The terms house and building are not further defined under the 1847 Act. However, under the 1875 Act a definition of “house” is included – “includes all schools, also factories and other buildings in which…persons are employed…” This is not an exhaustive list and consequently the definition is very wide.
1907 Act	It is considered that the 1875 Act definition applies: “Street” includes any highway…and any public bridge, and any road lane footway square court alley or passage whether a thoroughfare or not	It is considered that the 1875 Act definition of “street” applies, and this does include the term “highway”. There is no statutory definition of “highway” under the 1875 Act. All parts of the 1875 Act dealing with highways were repealed by the Highways Act 1959, this Act was subsequently consolidated into the Highways Act 1980.	N/A
1925 Act	It is considered that the 1875 Act definition applies: “Street” includes any highway…and any public bridge, and any road lane footway square court alley or passage whether a thoroughfare or not	It is considered that the 1875 Act definition of “street” applies, and this does include the term “highway”. There is no statutory definition of “highway” under the 1875 Act. All parts of the 1875 Act dealing with highways were repealed by the Highways Act 1959, this Act was subsequently consolidated into the Highways Act 1980.	N/A
1939 Act	It is considered that the definition in the London Building Act 1930 applies: “street” includes any highway road bridge lane mews footway square court alley passage whether a thoroughfare or not and part of any such highway road bridge lane mews footway square court alley or passage However, in the case of altering a street name, note that the 2023 Act governs how necessary support is demonstrated and a different definition of “street” applies under that Act.	The definition in the London Building Act 1930 of “street” applies and this includes “highway” in the definition: “street” includes any highway road bridge lane mews footway square court alley passage whether a thoroughfare or not and part of any such highway road bridge lane mews footway square court alley or passage	Empowered to number, name or number and name “any buildings in any street way place row of houses or block of buildings”. The 1939 Act does not include any further definition. The London Building Act 1930 (construed as one with the 1939 Act) does not include a definition of “building” but does include definitions of: “building of the warehouse class” – “means a warehouse manufactory, brewery or distillery or any other building exceeding in cubical extent2 one hundred and fifty thousand cubic feet which is neither a public building not a domestic building”; “domestic building” – “includes a dwelling-house and any other building not being either a public building or a building of the warehouse class”; “dwelling-house” – “means a building used or constructed or adapted to be used wholly or principally for human habitation”; “public building” – “means a building used or constructed or adapted to be used as a church chapel or other place of public worship or as a school college or place of instruction (not being merely a dwelling-house so used) or as a hospital workhouse public theatre public hall public concert-room public ball-room public lecture-room public library or public exhibition-room or as a public place of assembly or used or constructed or adapted to be used for any other public purpose; or a building used or constructed or adapted to be used as an hotel lodging-house home refuge or shelter where the building extends to more than two hundred and fifty cubic feet or has sleeping accommodation for more than one hundred persons; and includes the buildings and premises of the Stock Exchange within the city;” Given the above are types of “building”, it is considered that the overall definition is very wide and is not just limited to those types outlined above.
Local Acts	Typically, the Local Act in question includes a definition of “street”.	The Local Acts examined do not include a statutory definition of “highway”. Those that define “street” by reference to the (now repealed) Highways Act 1959 would have benefited in applying that definition from the statutory definition under that Act of “highway”.	The Local Acts examined do not include a statutory definition of “building”.
2023 Act	"street" has the meaning given by section 48(1) of the New Roads and Street Works Act 1991 This is a definition used by some Local Acts a "street" means the whole or any part of any of the following, irrespective of whether it is a thoroughfare-- (a) any highway, road, lane, footway, alley or passage, (b) any square or court, and (c) any land laid out as a way whether it is for the time being formed as a way or not. Where a street passes over a bridge or through a tunnel, references in this Part to the street include that bridge or tunnel.

Notes:

1. In applying the SNN legislation it is the definition of “street” that is key and not whether something is a “highway”. For the purposes of the legislation a “highway” is just one type of “street”.
2. The generally accepted definition of “highway” can be found in the Highways Act 1980 (section 328) but this only applies in that Act and in others that specifically adopt the definition (i.e. “in this Act the term “highway” shall have the meaning given in the Highways Act 1980”). The definition itself is not overly helpful.
3. It is important to distinguish between “highway” and adopted roads/footpaths (“highways maintainable at public expense”). The application of the SNN Acts above is not limited to highways that have been adopted. Highway rights may still exist even where the highway is not maintainable at public expense. This means that where street name plates are put up on un-adopted highways the maintenance of those nameplates may still be the responsibility of the local authority in line with the relevant SNN legislation in force. Note that public rights of way are a highway.
4. As a matter of common law, the “highway” is any route (road, footway, footpath etc.) over which the public has the absolute right to pass and repass without hindrance or charge (use as of right not by licence). The person responsible for maintaining the “highway” is not relevant in this context. A private road, footway, footpath etc. is one where the public does not have an absolute right to pass and repass (they may however have a private licence to use – e.g. using a private drive owned by a hotel in order to get to the hotel – such a licence is at the discretion of the owner). The SNN Acts are not just limited to “highway”.
5. It is considered that the term “building” would be construed widely under all of the legislation.
6. Most dictionary definitions of the term “building” refer to something with walls and a roof. In the absence of a clear statutory definition, a court may look to generally accepted definitions elsewhere to aid with interpretation. By comparison, in a planning and listed buildings context the following definition of a “building” is adopted: “…includes any structure or erection², and any part of a building, as so defined, but does not include plant or machinery comprised in a building”³. Following a recent Supreme Court decision⁴ the so called “Skerritts test” applies in both a planning and listed buildings context to determine whether something is a building. This three-fold test is endorsed by the Court of Appeal⁵ and the Supreme Court. It involves considering the size, permanence and degree of physical attachment of a structure or erection (its size, such that it has or would normally be constructed on the land and not brought onto the land ready made; its degree of permanence, such that it would normally remain in place and only be removed by pulling down or taking to pieces; and its physical attachment, although the fact that something is not so attached is not conclusive). There is no direct authority for applying the same test in an SNN context but it may be a useful starting point when considering what does or does not reasonably qualify as a building.

The Definition of a “Street” to be Named

The following definitions of the term “street” are used in the legislative schemes:

1847 Act: “The word “street” shall extend to and include any road, square, court, alley, and thoroughfare, within the limits of the special Act”;

1875 Act: ““Street” includes any highway…and any public bridge, and any road lane footway square court alley or passage whether a thoroughfare or not”⁶.

• This is wider than the 1847 Act.
• The 1875 Act is stated to incorporate the 1847 Act provisions with respect to the naming of streets. It is not clear whether this was intended to include the relevant definitions.
• If it did then this means that, there are two definitions of the term street. As a matter of statutory interpretation, it is considered that the 1847 Act definition would apply to the street naming and numbering provisions as incorporated into the 1875 Act. The 1875 Act definition would apply to all other parts of the 1875 Act.
• If, however, it was intended that the definitions were not to be incorporated from the 1847 Act then the wider “street” definition will apply.
• Currently no case law can be located, on this point. The view should therefore be taken that the legislature cannot have intended (without express wording to the contrary) to have two definitions. Therefore the 1875 Act definition is to be preferred.

Highway

It is important to note that the term “street” is not limited to adopted or un-adopted Highway.

The term “Highway” means “(1) In this Act, except where the context otherwise requires, “highway” means the whole or a part of a highway other than a ferry or waterway…(2) Where a highway passes over a bridge or through a tunnel, that bridge or tunnel is to be taken for the purposes of this Act to be a part of the highway”⁷.

There is also a common law definition of highway which concerns the public passing and repassing as of right.

Use of the term highway does not necessarily mean that the street has been adopted. Highway rights may still exist even where the highway is not maintainable at public expense. This means that where street name plates are put up on un-adopted highways the maintenance of those nameplates may still be the responsibility of the council in line with the relevant naming Legislative Scheme in force.

What Needs to be Numbered, Named or Named and Numbered in respect of Buildings?

3.4.1 In the case of local authorities in England & Wales (excluding London):

• They are required to number “the houses and buildings in all or any of the streets”. No further definition is included in the 1847 Act.
• The 1875 Act (that incorporates the 1847 Act provisions) does include a definition of “house” as “includes schools, also factories and other buildings in which…persons are employed…”
• Following the arguments above on the definition of “street” it is suggested that the 1875 Act definition of “house” can apply.
• This means that what buildings need to be numbered is very wide.
• The 1847 Act does not expressly specify how sub-divided buildings should be numbered.
• The 1847 Act does not expressly permit a house/building to be given only a name (contrast with the express provision in the 1939 Act).

In London, the 1939 Act empowers the local authority to number, name or number and name “any buildings in any street way place row of houses or block of buildings”⁸. The power to name a building is excluded in relation to theatre, cinemas and music halls and certain buildings selling alcohol⁹. The term “building” has not been defined and it is not considered that the legislation deals expressly with sub-divided buildings save as regards a row of houses (again not defined) or block of buildings.

By comparison, in a planning and listed buildings context the following definition of a “building” is adopted: “…includes any structure or erection¹⁰, and any part of a building, as so defined, but does not include plant or machinery comprised in a building”.¹¹ Following a recent Supreme Court decision¹² the so called “Skerritts test” applies in both a planning and listed buildings context to consider whether something is a building. This is a three-fold test endorsed by the Court of Appeal¹³ (and now the Supreme Court) that involves considering:

• the size of the structure or erection - the Dill judgement reiterates that just because something has been erected is not sufficient to make it a building. It must be a “sizeable and protracted event”
• the permanence of the structure or erection – The building must be assembles on site and cannot be delivered ready made
• the degree of physical attachment of the structure or erection. – There must be some degree of permanence of the location of the item

There is no direct authority to apply that same test in an SNN context but it may be useful to observe its use in a planning/listed building context when considering policies as to what reasonably is or is not a building.

² Stated to include (in relation to buildings), “extension, alteration and re-erection”
³ See Section 336, Town and Country Planning Act 1990 and Section 91(2) and (7), Planning (Listed Buildings and Conservation Areas) Act 1990
⁴ Dill v Secretary of State for Housing and Communities and Local Government and Stratford-on-Avon District Council [2020] UKSC 20
⁵ Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025
⁶ Section 4
⁷ Section 328, Highways Act 1980
⁸ Section 11
⁹ Section 11(9)
¹⁰ Stated to include (in relation to buildings), “extension, alteration and re-erection”
¹¹ See Section 336, Town and Country Planning Act 1990 and Section 91(2) and (7), Planning (Listed Buildings and Conservation Areas) Act 1990
¹² Dill v Secretary of State for Housing, Communities and Local Government and Stratford-on-Avon District Council [2020] UKSC 20
¹³ Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] JPL 1025