Sadly no. Very controversial as it blocks railway restoration and cycleways.
At first glance it would seem excluded from the definition of a highway – in that where there is a bridge the right to pass or repass applies to the bridge and not to land underneath it – where it acts as a flying freehold.
However the GDPO Part 9 Class A
A. The carrying out by a highway authority—
(a)on land within the boundaries of a road, of any works required for the maintenance or improvement of the road, where such works involve development by virtue of section 55(2)(b)(1) of the Act; or
(b)on land outside but adjoining the boundary of an existing highway of works required for or incidental to the maintenance or improvement of the highway.
The key words are outside but adjoining, as this is development as an engineering operation.
Eden in the case of Great Musgrave Bridge gave correct advice that it was PD.
Which raises the question over whether clause (b) should remain. This kind of vandalism was never envisaged. It should expressly exclude blockage of a former route of another highway, canal, footway or railway.
I doubt however they have any power to infill the tunnel in Bradford propsoed as a cycle way. In any event Grant Shapps should kick Highway England’s arse into touch
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