Our Ref: scs256d1 / FOI4729

Date: 19th January 2011

Dear Mr David

Freedom of Information Act 2000 – Request for Information

I am writing in respect of your recent enquiry for information held by the Authority under the provisions of the Freedom of Information Act 2000.

With reference to your recent email, I will try to clarify where possible in a clear, plain manner as I am conscious of rehearsing the same information to you that has been provided to you on a number of previous occasions.

Your questions and enquiries have been reproduced below in italics followed by my response, in the order that they were raised.

You mention a legal ownership and not lawful one so what right has say for example has the council got to charge someone for a pedlo licence say " ?

I assume what you are enquiring about, is a Pedlars licence.

In answer to your question focussed on Pedlars, the Council does not have a right to charge someone for a Pedlars licence. Pedlars are not licensed by licensing authorities but are granted certificates by the Police under the Pedlars Act 1871.

As BCC is a statutory body, any rights it exercises has to be rights conferred on it by acts of parliament.

Section 3 of the Local Government (Miscellaneous Provisions) Act 1982 ("the 1982 Act") enables a Council in England to adopt a code for the regulation and control of street trading within its area. Street Trading is defined by the 1982 Act and there are provisions within that Act that distinguish between the issuing of a licence and the issuing of a consent.

For further information about the control of street trading by Birmingham City Council (“BCC”), please visit http://www.birmingham.gov.uk/street-trading in this regard or visit,http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-05693.pdf for further information about pedlars and street trading.

Also what is easement's as mentioned in your response?

In simple terms, an easement is a right over one piece of land existing for the benefit of another piece of land e.g. the right to use a drive way or access way.

For further details about the above, you may find the following Land Registry practice guide on easements quite informative at http://www1.landregistry.gov.uk/assets/library/documents/pg62.html

Who would the council Lease the highway footpath of exactly?

It is not clear what you are referring to in the above sentence. Could you clarify this question or rephrase it.

Legal Person Where is that legal person based exactly ?

In Legal Services, 11-14 Cannon Street, Birmingham.

Do The Council Have A section and / or department for this ? This work would be done by Solicitors/legal executives working in BCC’s legal services.

Are they legally trained and qualified ? Yes

Do they have a legal certificate? Yes

Can that certificate be seen by and upon request by any member of public ? A list of all qualified Solicitors employed by the Council can be found on the Solicitors Regulation Authority website, www.sra.go.uk. In respect of qualified legal executives, the members directory can be found in The Institute of Legal Executives’ website.

What Has The Transportation Department Have to do with who owns the foot path ? They may have additional information that would assist a legally qualified person in determining the legal ownership of a highway that is maintained by that department. The highway would include the footpath.

I'm Not Bothered who own's the soil I'm only Interested In Who Owns the Footpath's As you have made it clear you only maintain it not own it however i would still like to know who legally or lawfully own's them especially in the area's i have stated .

Although you may not be bothered about who owns the soil, the law has a view about it and this is set out in the Highways Act 1980 (which the Council is subject to) and in a body of well established case law as a result of that Act.

There is a presumption under the law that adjoining landowners own the subsoil 'ad medium filum viae' (ie to the middle line of the road) beneath the top two spits vested in the highway authority together with that section of air above the highway which is required by the highway authority.

To answer your question of who owns the footpath other than the top two spits of the road which is owned by the Council by virtue of the Highways Act 1980 due to it’s legal duty to maintain the surface of the highway, an investigation will need to be carried out as to who are the adjoining landowners.

To assist, I have provided a simple diagram of a highway; I do not propose to go into the details of what encompasses an investigation and who carries it out as I have already provided this in my previous emails to you.

Air above the surface

______surface of a highway maintained by BCC under the highways act 1980

In the case of Tithe Redemption Commission v Runcorn UDC 1954, it was stated that the 'top two spits' of the road were vested in the highway authority and this is recognised as being the working solution to the physical extent of the highway’s authority ownership.

------subsoil of a highway; ownership is a matter of investigation

Whilst we have undertaken a thorough search of the information held by Birmingham City Council, it may be that, due to the size and amount of information held by Birmingham City Council, some information may have been inadvertently missed.

If you have any information which may assist us in determining or locating any missed information, we would be grateful if you would contact us with details of this information, so that we can conduct a further search.

If you are not satisfied with the response you may ask for an internal review.

To do this, please contact Birmingham City Council’s central FOI Team at this address:

Corporate DP/FOI Team

3rd Floor,

1 Lancaster Circus,

Birmingham B4 7AB

Tel: 0121 303 4876 email:

If subsequently you are not satisfied with the Council’s decision you may apply to the Information Commissioner for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaints procedure provided by the Council. The Information Commissioner can be contacted at the following address:

The Information Commissioner

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

Telephone: 01625 545745

Web Address: www.ico.gov.uk

Yours sincerely

Sonya Cerutti

Information Governance Manager

Business Support – Data Protection / Freedom of Information

Performance and Support Services

Re use of Public Sector Information

The information provided is subject to Birmingham City Council copyright, however, it may be re-used for personal, educational or non-commercial purposes without further reference to the City Council. If the re-use is for other purposes, such as commercial re-use, you should notify the City Council in writing to seek approval or agree terms for re-use. Where Birmingham City Council does not hold the copyright, it has indicated the copyright holder. Permission for re-use should be sought from them directly.

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Birmingham City Council has been approached by The Constitution Unit asking for help in contacting requesters. The Constitution Unit, a research body at University College London, is carrying out a study of the Freedom of Information Act 2000 and its effect on local government. An important part of the evaluation process is gathering the experiences and opinions of FOI requesters like you.

If you would like to take part in this study, please use the link below to be taken directly to the survey, and/or contact Ben Worthy at or on 020 7679 4974 to find out more about the study or to speak further about your experiences.

Link to the survey: http://tinyurl.com/yffzxor

Environment and Culture

PO Box 2122 Telephone: 0121 303 1294

House of Sport Fax: 0121 303 4943

300 Broad Street

Birmingham

B1 1TZ