Can A Highway Act 1980 S. 297 Notice Be Served On A Suspected Landowner (Where The Land Is Unregistered) Or Can A Notice Only Be Served Where There Is Actual Evidence Of Occupation Or Evidence Of Receipt Of Rent?

• Published date: 27 October 2023
• Subject Matter: Real Estate and Construction, Construction & Planning, Landlord & Tenant - Leases
• Law Firm: Norton Rose Fulbright Hong Kong
• Author: Sarah Fitzpatrick

Section 297 Highways Act 1980

1.1.

Section 297 of the Highways Act 1980 (HA) permits a highway authority or council to require information from the occupier or 'landlord' of any premises as to its ownership to enable them to discharge or exercise any of their functions under the HA. The highway authority or council may require the occupier of any premises, and any person who either indirectly or directly receives rent in respect of the premises, to state in writing the nature of their interest in the land and the name and address of any other person that they know who also holds an interest. The interests captured under s. 297 are broad and include freehold titles, leaseholds, mortgages and leases.

1.2.

If a notice requiring such information is served, and a person required to respond by s. 297 fails to do so, they are guilty of an offence¹ and liable to a fine of up to '1,000² . If such a person knowingly makes any misstatement with respect to their interest in the premises, or the details of other interest-holders, then they are guilty of an offence³ and liable on summary conviction to a fine of up to '1,000⁴, or on indictment to imprisonment for up to 2 years, or a fine, or both. Although it is an offence under s. 297 HA either to fail to provide the requested information, or to deliberately misstate the information which is provided, the obligation which arises under s. 297 to disclose such information only applies to the occupier of the premises, or any person in receipt of rent in respect of the premises.

Who is an "occupier"

2.1.

The definition of occupier has no fixed statutory meaning and should be construed from its context and the purpose for which it is used (Graysim Holdings Ltd v P&O Property Holdings Ltd⁵). In Graysim, Lord Nicholls stated at pp 334-335 that "as has been said on many occasions, the concept of occupation is not a legal term of art, with one single and precise legal meaning applicable in all circumstances. Its meaning varies according to the subject matter [...] in many factual situations questions of occupation will attract the same answer, whatever the context ... the answer in situations which are not so clear cut is affected by the purpose for which the concept of occupation is being used." Lord Mustill similarly observed in Southern Water Authority v Nature Conservancy Council, that "the words 'occupy' and 'occupier' [...] draw their meaning entirely from the purpose for which and the context in which they are used"⁶...