ROADS AND NEW
DEVELOPMENTS
ADOPTION OF HIGHWAYS
HARRIET TOWNSEND
2-3 GRAY’S INN SQUARE
Paper prepared by Paul Shadarevian
INTRODUCTION
1. How properly to serve the access needs of
new development?
2. Assuming means of access is/are to be by new
highways, should they be mpe? Public utility.
3. If not, likely to need s278, s106 and/or
Grampian conditions [see models 15-19].
Possible payment - advance payments code.
4. If new highways are to be mpe, by which
process are they to be adopted?
DEDICATION
Whether or not to be mpe:• Freeholder required
• Beware third party rights over land to be
dedicated
• Consider effect of new highway on other
land – could open up land for development
elsewhere and developer may seek to
share costs.
ADOPTION
• By far the most common method is s38
agreement.
• Alternative is s37 procedure – much less
desirable esp in context of new devt.
• Outside possibility that the context of
construction is within s36.
• Where works take place in private street,
adoption may be by declaration under s228
[cumbersome and rarely used in context new
development]
Highways Act s38(3)
(3) A lha may agree with any person to undertake the
maintenance of a way
(a) Which that person is willing and has the necessary
power to dedicate as a highway, or
(b) Which is to be constructed by that person or by a
highway authority on his behalf and which he proposes
to dedicate as a highway.
And where an agreement is made under this ss the
way to which the agreement relates shall, on such
date as may be specified in the agreement, become
… a highway mpe.
Similar where new highway is to be a trunk road [s3A]
Highways Act s38(6)
(6) An agreement under this section may
contain such provisions as to the
dedication as a highway of any road or
way to which the agreement relates, the
bearing of the expenses of the
construction, maintenance or improvement
of any highway, road, bridge or viaduct to
which the agreement relates and other
relevant matters as the authority making
the agreement think fit.
Highways Act s38
In summary s38 is a broad power within which
proper provision may be made for ensuring
a) an achievable and workable arrangement for
the provision and maintenance of a new
highway [developer and lha common interests]
b) the costs of and arising from the provision of a
new highway mpe are appropriately met
[developer and lha divergent interests].
Interests in common
All those issues which make agreement achievable and
workable.
• Land ownership – precision – even v small areas of land
can be critical.
• Who is to construct? Generally developer.
• When is it to be dedicated and/or mpe? Note ss3 – the
date can be determined by satisfactory completion of
certain conditions.
• Reciprocal covenants from lha (eg timely inspection etc)
• Is there a need for s278 provisions dealing with
interface?
Issues which could be contentious
Broadly, those issues dealing with
consequences of default on either side
and responsibility for costs whether or not
in consequence of default.
Each will want to maximise certainty and
minimise exposure. Priorities as between
these may vary case to case.
Issues which could be contentious
• D: should you be responsible for all the costs?
Consider the degree to which the highway will
serve a wider purpose.
• LHA: should a bond be sought and for how
much? Sureties are generally required and
effective in recovering LHA costs following
default, even where works are satisfactorily
completed by another builder.
• D: can you limit your indemnity exposure and if
so how?
INDEMNITY
Clause under which LHA protects itself against potential
future claims.
• Common to exclude claims arising from Council’s own
default.
• Common to include all claims arising from the carrying
out of works.
• A broad provision re all claims “arising out of or in
connection with or incidental to the carrying out of the
works ..” will not include claims for compensation under
the LCA 1973 [Wiltshire CC v Crest Estates Ltd and
others [2005] EWCA Civ 1087]. Expressly include such
claims if it is agreed they should be covered.
• What role may developer play in settlement of disputes
over quantum of compensation?
Highways Act s228
• A power to adopt by declaration where
street works have been executed in a
private street. Not often used.
• Note supplementary power s229 in
frontagers to require adoption of private
street in certain circumstances.
Part XI of the Highways Act
Terminology
• A private street is
– a street not mpe
– land deemed to be a private street by s232 (land identified for
new road and designated as land to which s232 applies).
• A street is “any highway or any road, lane footway
square court alley or passage whether a thoroughfare or
not and includes any part of any street.” [s329(1)] broad
defn inc all highways not mpe.
• The street works authority is generally the LHA
• Street works are “any works for the sewering, levelling,
paving, metalling, flagging, channelling, and making
good of a street and includes the provision of proper
means for lighting a street”.
Part XI of the Highways Act
• The Private Street Works code = ss205-218 and applies
where the swa considers works should be done; the
code describes the procedure by which the swa
identifies the works required, carries them out, and
recovers its costs from frontagers, apportioned in
accordance with the code.
• The Advance Payments Code = ss219-225 and is not
universally applicable [check s204]. Where a new
building will have a frontage onto a private st the owner
of that land is responsible for making or securing an
advance payment to cover any street works which may
be needed in the street in question. Criminal liability of
owner and builder for default. If covered by s38
agreement, exempt from the code (s219(4)(d)).
The role of s228
• Where street works have been carried out,
– the swa may LHA may declare the private
street to be a highway mpe
– If an advance payment has been made by at
least one frontager on a built up street, a
majority of frontagers may require swa to
exercise their powers to carry out works at the
expense of frontagers and then to declare the
street a highway mpe.
Rusby v Harr
• [2006] EWCA Civ 865
• s228 effectively restricts any challenge –
however fundamental the issues it raises –
to the adoption of the private street as a
highway mpe, to the provision within s228
for resolution of objections and the 2
month time limit for judicial review
provided by s228(5).
Conclusion
• Highways Act s.38 is generally the most suitable context
within which to secure the adoption of new highways
providing access to development.
• It can be used for creation and adoption of all forms of
highway [inc eg new footpaths].
• Include within it clear provision for the apportionment of
expenses and responsibility for liabilities and be
prepared for the need to provide a surety.
• Be aware of the breadth of definition of private street and
the potential need for payment under the advance
payments code (unless this is covered within a s38
agreement)