ROADS AND NEW DEVELOPMENTS

1. ROADS AND NEW DEVELOPMENTS ADOPTION OF HIGHWAYS HARRIET TOWNSEND 2-3 GRAY’S INN SQUARE Paper prepared by Paul Shadarevian

2. INTRODUCTION • How properly to serve the access needs of new development? • Assuming means of access is/are to be by new highways, should they be mpe? Public utility. • If not, likely to need s278, s106 and/or Grampian conditions [see models 15-19]. Possible payment - advance payments code. • If new highways are to be mpe, by which process are they to be adopted?

3. 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.

4. 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]

5. Highways Act s38(3) (3) A lha may agree with any person to undertake the maintenance of a way • Which that person is willing and has the necessary power to dedicate as a highway, or • 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]

6. 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.

7. 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].

8. 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?

9. 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.

10. 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?

11. 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?

12. 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.

13. 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”.

14. 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)).

15. 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.

16. 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).

17. 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)