Ray Bennett, Principal Officer for Highways and Transport from Lancashire County Council will be attending the meeting to provide an update on adoptions and answer any questions from Members.
Minutes:
The Overview and Scrutiny Committee welcomed Ray Bennett, Principal Officer, Highways and Transport at Lancashire County Council.
Ray Bennett defined ‘Highway’ as a road or street which may include a carriageway, a pedestrian or cycle route, or even a verge, in which the public had the right to pass without hinderance or obstruction.
‘Adoption’ was the process, procedure, or mechanism where the highway authority agreed to take on a street or streets and maintain them at public expense for perpetuity. This was managed and maintained by the County Council as the Highway Authority in Lancashire.
Ray Bennett briefly explained the history of the process of Adoption, recounting the legislation passed to create the current process, and explained that a street to be adopted had to serve at least six separate residential properties. Further information about how Lancashire County Council determined what could be adopted was in a County Council document entitled “Code of Practice on Highway Status and Adoption”.
The Adoption Mechanism was highlighted in Section 38 of the Highways Act 1980. Section 38 was an agreement between the parties involved. The landowner had to agree to the adoption, and the highway Authority had to agree to take the highway and then maintain it.
The Highway Authority was unable to force a developer to enter into an agreement for streets on their private land to be adopted, and the developer cannot force the Highway Authority to adopt a road system through Section 38.
The process of the mechanism involved a developer to approach the County Council and declare that they wished for their roads, footways, and associated infrastructure to be adopted. This should occur before construction starts but is often not the case. For an agreement to take place, the Highway Authority required evidence including planning permission, full title to the land and streets which are to be built on, the highway layout and construction and highway drainage.
As part of the process, the Highway Authority would provide details of the information needed for adoption, such as technical requirements, documentation, and format required, legal advice and a draft Section 38 agreement and certification leading to final adoption.
The length of the process had no set time, but typically occurred 24 months from completion of the site work. Adoption was subject to a final inspection and placed on a 12-month maintenance period to highlight work to be completed by the developer prior to adoption. Large complex sites that have multiple phases took significantly longer to adopt.
There were several barriers that could prevent agreement and the process occurring in a timely manner, these could include:
- The design, layout or construction not complying with the County Council’s design standards for adoption
- Full title cannot be demonstrated, some developers construct on land they do not have the title on
- Technical details required to enter into the Section 38 Agreement were not provided
- Confirmation not provided that linked agreements were established, e.g. with United Utilities to facilitate drainage of the site
- Inspection fee not being provided, and the site constructed without supervision, leading to uncertainty what had been laid down
- Legal documentation not returned
- Access obstructed or planted over
- Site failed to link to a highway maintainable at public expense
Section 37 of the Highways Act 1980 enabled owners of a road to serve notice on the Highway Authority to declare their intention to dedicate the street as a highway. All requirements for Section 37 mirrored Section 38. Though extremely rare, there have been attempts by developers to force inappropriate development onto the County Council through Section 37 in the past, and they were rejected through the Magistrate Court.
Section 228 of the Highways Act empowered the Highway Authority to adopt a private street after execution of street works. This is referred to as the Private Street Works Code. Section 228 is an aggressive form of adoption that removed land ownership rights and forced landowners to pay for streets to be at an adoptable standard.
For further insight into highway adoption, see “Department for Transport (DfT) Advice Note on “Highway Adoption” April 2017.
Members asked if the online mapping system was kept up to date as there were examples where constituents had their estates adopted but were told by the contact centre that it was not the case. Ray advised they are updated as soon as the adoption passed.
The Chair enquired about the process if a development was finished and the developer ceased business operations. Ray explained that the process was to take the money from the developer before construction started but part of the highway’s legislation was broken and building regulation was taken from the hands of the authority. There were plans for the legislation to be rectified but delayed due to Brexit and Covid-19.
Members queried what could be done about a large estate that was not adopted with several complaints. Ray explained residents would need to approach the developer and push for adoption, and it would be the developer’s remit to approach the Council.
Members noted that there was not the communication in place for residents, District Council Members and departments. She asked if GDPR was a reason for difficulties in communication between residents and the Council after developers went into administration.
Ray believed that it was difficult as residents would be aware if the house they were purchasing was on an adopted street or not. It was up to the developer to seek adoption, and he reiterated hopes that legislation would strengthen the position to seek payment prior to the start of construction. In terms of communication, he explained that there was a District Team in place to deal with enquiries from Parish Councils through to the parliamentary representative. Members highlighted issues with this and Ray undertook to raise it with the team.
A query was raised about the nature of adoption for properties that were leasehold. Ray felt that it was complicated but ultimately the developer had the title to the land they were built on and if they didn’t own all of the land that was built upon, adoption could not occur. He noted that in Adlington, there was a small section of highway that was not owned and could not be adopted.
Decision: The report was noted