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Mrs Anne Main (St Albans) (Con)
It is good to serve under your chairmanship this morning, Mr Benton. The debate is about the adoption of roads in Hertfordshire, about which my hon. Friend the Member for Kettering (Mr Hollobone), who is in the Chamber, has also had an important debate. Highways adoption is a pressing concern countrywide, and its importance is signified by the fact that this is the second such debate in this Parliament alone. My hon. Friend also raised the issue in the previous Parliament, and I pay tribute to him for his tenacity. We both cried “Snap!” when we got back to the House and saw that we were trying to secure a debate on the same topic.
I thank the Minister for his considered replies to my hon. Friend’s debate on 10 June. I wish to pick up where my hon. Friend left off and to have second stab at the issue, which I hope to move forward even more. I noted with interest the Minister’s comments about the current position and the measures that are in place, but I hope that he will be able to update us on his thoughts and give us some hope of a speedy resolution.
Unadopted roads—particularly residential roads—are a particular issue in Hertfordshire, where we have experienced a large amount of development. Up-to-date information about the scale of the problem is not available, but it is estimated that 40,000 roads in England and Wales are unadopted. I am not particularly concerned about farm tracks or roads that residents wish to keep unadopted; I am talking about the tens of thousands of roads on new residential developments. Let me make it clear that when I say “new” I do not mean brand-new, but relatively new.
Worryingly, residents are frequently unaware of the status of their road until they try to consult their council about a problem. As we know, some roads have been unadopted for 10 years or more. The people who live on them often struggle to access public services and to meet the maintenance costs for which they are personally liable. More importantly, these roads materially inconvenience residents, creating an unfair situation in which householders pay significant amounts of council tax for services that they do not receive.
Hertfordshire contains significant areas of green belt. In areas such as my constituency, the focus has understandably been on the usage of brownfield sites for new development. One such site is the old City hospital site, where there is a problem with unadopted roads. That was highlighted to me when I talked to residents over the campaign period. They are frustrated that people visiting the current City hospital park on their roads to avoid the hospital’s car-parking charges. They are powerless to combat the problem because the local authority cannot do anything about rogue parkers. Children who live in these roads are also put at risk by the increased volume of traffic outside their homes. Furthermore, hospital visitors avoid paying parking fees, and local authorities, which raise significant amounts from legitimate parking schemes and city centre car parks, will be keen to see roads formally adopted and brought under proper control. Most of St Albans has a residents’ parking zone, so something surely needs to be done to protect residents who are affected by the blight that I have described.
It can be difficult living on an unadopted road. Street lights might go out, but no one will repair them. Vehicles can be dumped, but the police can do nothing. People use the busy roads as a car park, but there are no parking attendants. Residents cannot get parking permits, zones or controlling. Importantly, dangerous pavements also go unrepaired. Unadopted highways can lead to issues with maintenance, street cleaning, lack of pedestrian facilities, lighting and drainage. As time goes by, such issues make it harder for those living in the road to sell their properties.
Speeding is an even greater concern. For safety reasons, St Albans wishes to adopt a “20’s Plenty” city centre speed limit, but some city centre roads in new developments are not adopted, so the speed limit is not enforceable. The issue came up on the doorsteps. People are puzzled as to why recently constructed roads, which often look superior to the potholed roads that we are famous for in Hertfordshire, are not formally adopted.
I called the debate because my council wants action. Hertfordshire recognises that we in Parliament need to help it. Indeed, in 2009, Herts county council highways and transport cabinet panel formally recommended actively involving MPs, with the aim of exploring the possibility of altering legislation to address the problem. In many areas in my constituency where new housing developments have been built, the local authority has subsequently failed to adopt the roads. I have consulted Herts county council, which shares local people’s frustration about unadopted roads, but it is often frustrated by the limited mechanisms available to it to tackle the issue. There has been concern, and people have voiced the belief, that local authorities may not wish to adopt roads for reasons of their own, but Herts assures me that that is not the case.
One issue that has been raised with me over the years is that people buying a property are assured that the road is being considered for adoption. I know that this is a case of caveat emptor, but if someone is told that a road is seriously being considered for adoption—a woolly phrase if ever I heard one—they would expect it to be adopted within a reasonable time. One constituent, who contacted me last year, bought their home in 2006. The road was built approximately 10 years ago and was unadopted at the time of purchase, but inquiries seemed to suggest that it would be adopted shortly. However, four years later it has still not been adopted, and my constituent is understandably frustrated. Many purchasers who have been given similar assurances that their road is indeed progressing towards adoption feel duped. This seems to be a frequent issue when prospective purchasers do the searches; they are given the impression that the road is in the process of being adopted, but nothing is really being done to progress that.
A report to Herts county council in November 2009 looked for a new approach to highway adoption. The report was formulated in response to the concerns of many of my constituents, as well as district councils and developers, about the time that it was taking to adopt roads in new developments. At present, Herts county council, which has responsibility for all non-trunk roads in the county, is responsible for the adoption and subsequent maintenance of roads. The guiding principle in the adoption of new roads is that they should have wider utility than simply providing access to a small number of properties. As a result, short cul-de-sacs are routinely not adopted, and commercial and industrial roads are also not adopted. Herts county council tells me that all parties need more clarity over the extent of adoption and that the extent of highway adoption should form part of any planning approval for developments involving the construction of new highways. It also believes that it would be helpful if road signs on unadopted roads made it clear that they were not adopted, so that there was no confusion.
As I said, we have no idea of the number of unadopted roads, because the most recent survey was in 1972. It is vital, if we are to tackle the problem, that we gather more information about its extent. In his recent response to my hon. Friend the Member for Kettering, who is in the Chamber because he feels so passionately about this matter, the Minister stated that
“knowing the number of unadopted roads would not really provide the context, because the vast majority…are not really relevant to the issues in question”.—[Official Report, 10 June 2010; Vol. 511, c. 578.]
However, it might be helpful for the Government to have some idea of the scale of the problem. I am aware of the need to limit public expenditure at present, and a full survey would be prohibitively expensive, but closer working between the Minister, his Department and local authorities might help us all. Will the Minister therefore undertake to arrange for his officials to write to every relevant authority in England and Wales to seek an estimate of the extent of the problem in its area? In his recent debate on the issue, my hon. Friend the Member for Kettering listed 14 local authorities, my own among them, with which he had been in correspondence over the problems of unadopted roads. Their experiences are surely not atypical, which is why a thorough investigation of the issues is necessary, and it need not be expensive.
Let me give an example of the extent of the problem. In just one borough in Hertfordshire—Hertsmere—more than 626 out of 2,165 sections of streets, footways and other highways are not maintained. That represents nearly a quarter of the sections of Hertsmere’s roads. As I said, a lot of the data dates back to the 1970s, and there has been a huge expansion in building since then, so it would be helpful to get a sense of the extent of the problem. Will the Minister agree to undertake such an exercise and to place a copy of the information that is collected in the Library, so that other hon. Members can see the extent of the problem?
Where the construction of a new estate is involved, a local highways authority can, under section 38 of the Highways Act 1980, adopt a road by agreement with the owner. Essentially, the developer of an estate can enter into an agreement with the highways authority to construct streets to the authority’s satisfaction and in accordance with its specification. The road then becomes a highway maintainable at public expense. I should add that section 38 cannot be used if the owner cannot be traced. However, Hertfordshire county council tells me that under the current system, when local planning authorities grant permission for a development that includes new roads, they cannot impose planning conditions regarding the extent of highway adoption or the timing of the adoption process, nor do they have any power to force the developer to put a road up for adoption. Perhaps that can be looked at under the new Government’s fresh approach to planning.
In the previous Parliament, the use and inadequacies of section 106 funding were seriously examined, and section 38 might be a suitable topic for the Department for Communities and Local Government to look at with the Department for Transport in a cross-cutting report. There are no incentives for developers to enter into section 38 agreements, and developers currently initiate the process dictating whether they enter into a section 38 adoption. However, in the current economic climate there is a risk that even fewer section 38 agreements may be entered into, because developers do not have resources to fund the bond of such an agreement.
There are several reasons why a road often does not progress to adoption; I shall not list them in this short debate. My council tells me that it has concerns about the inability of local authorities to oblige developers to enter into a section 38 agreement so that highways can be adopted. I understand from the Minister’s recent reply to my hon. Friend the Member for Kettering that the Government are investigating options to alter legislation to address the problem. After the thought that he may have gone through since the last debate, will the Minister update us today on the progress of the investigations or give us a hint of the trajectory that his thought process might take?
Mr Philip Hollobone (Kettering) (Con)
It would be remiss of me not to pay a huge tribute to my hon. Friend for her excellent speech. She is hitting all the right buttons for me. On the Minister’s welcome point about looking at legislation on section 38 agreements, I hope that he will advise her about the point that, even if developers enter into section 38 agreements and have bonded funds, local authorities cannot access those bonded funds without the permission of the developer. Often the developer has to go bust before the local authority can access the moneys.
Mrs Main
I thank my hon. Friend for his valuable point. He has done sterling work on the matter. What he says is true. It seems that people are caught in the dilemma that although the money is in place, no one can access it. They are therefore powerless to do anything about the road that is unadopted. I am hoping that the Minister will give us his thoughts today, think outside the box and tell us what he could do.
I am told that another option is the advance payments code under the 1980 Act, which was designed to secure payment of the expenses of completing roadworks in unadopted roads next to new buildings, and to ensure that the street works authority could complete the roadworks if a developer failed to complete them. The code was apparently introduced to guard against the post-war problem of small, speculative developers, but my local authorities tell me that it offers little protection for them on today’s large developments where access roads may not contain houses adjacent to the road and are therefore not covered by the code, or where there might be many properties, each of which has to be dealt with separately, so that strict time constraints preclude that action.
The advance payments code is not implemented by Hertfordshire county council and has not been for at least 30 years. Surely that shows that it is a toothless tiger that needs to be revisited as a piece of defunct legislation. I am told that the code is highly resource-intensive and that it gives little protection against the problems currently besetting Hertfordshire, not least because we are a two-tier authority, and planning is the responsibility of the district council. Hertfordshire county council says that other highways authorities that follow the code are in the minority and are mostly single-tier authorities where the necessary communication between planners and highway engineers is more easily achieved.
I just wish to touch on one further issue today. I want to give the Minister plenty of time to respond; perhaps my hon. Friend the Member for Kettering and I may come back at him occasionally. I want to highlight a particular impact that delays in the adoption of roads have had in recent months. We all remember that dreadful cold snap in January and its effect on roads in many areas. In Hertfordshire, we felt it particularly acutely and it exacerbated an already dire situation regarding road surfaces in the area. As a result of two harsh cold snaps in two years, the problem is now reaching a tipping point for our roads. It has also affected unadopted roads. Those roads were not gritted. They were also liable to damage by the weather. Some roads that were already in a dire situation have got worse. Some roads still awaiting adoption have now deteriorated in the interim period and they are even less likely to lose their orphan status.
As for the question of timing, 10 years is a very long time in the life of a road. My constituent said that his house was built 10 years ago, and since then significant damage has been done, especially if utilities have been digging up the road and compromising its integrity. I shall be grateful if the Minister will say in his reply what steps are being taken to speed up the process so that such situations do not arise in the future, with the inevitable knock-on consequence for people waiting for their roads to be adopted.
On a final note, my hon. Friend the Member for Kettering stated that he was open, as I am, to practical suggestions as long as they place the cost on the appropriate people and can be implemented quickly, to enable authorities to manage the situation better. In these harsh economic times, that is exactly the right tone. It should be for the people who have benefited from the new estates and developments to make roads up to standard, which are then adopted with all rapidity. There needs to be a purposefulness on the part of the developer to bring that about.
My local authority has a great deal of expertise, and I know that it will welcome the chance to make practical suggestions to the Minister. Is he willing to meet representatives of Hertfordshire county council to discuss the issue in more depth, or even consider calling there once he has ascertained the seriousness of the problem in the country, bringing the authorities together for an open, round-table discussion? Since the problems vary greatly from area to area, people might throw their hands up in the air and say, “Nothing can be done”, but I do not believe that that is the case. Given all the expertise around the country highlighting the problems to the Minister and making practical suggestions, perhaps that is something that he could put as a feather in his cap. It would be an easy win relatively early in this Parliament, and prevent the problem from happening any more.
I welcome the fact that planning is being given back to people to decide at a local level. However, the Minister should be aware that in district councils there are many people who are willing to serve their area but do not necessarily know how to put in place a tough agreement to ensure that when they grant permission for a development, it has roads that are fit for purpose and can be readily adopted. The two-tier council approach that we have in Hertfordshire and other areas is part of the problem. Is the Minister able to give us any comfort on how we can have input from local authorities and how we can ensure that local people who wish to take control of planning are not left with a load of white elephants in the form of buildings on unadopted roads? Perhaps he can tell us whether he is able to get a sense of the scope of the problem by writing to local authorities, so that we can have the information at our fingertips.
The Parliamentary Under-Secretary of State for Transport (Norman Baker)
I thank my hon. Friend the Member for St Albans (Mrs Main) for, and congratulate her on, securing this debate on an issue that is clearly important to her, her constituents, and the constituents of my hon. Friend the Member for Kettering (Mr Hollobone) and many other Members up and down the country. I know that she has tabled an early-day motion on the subject. I assure her from the beginning that I am sympathetic to her concerns. I know that the issue has resonance with other Members; the last time I checked, her early-day motion had secured the support of 15 Members from both sides of the House, and perhaps that figure has now increased. As she knows, the debate that my hon. Friend the Member for Kettering secured recently was his second such debate in recent months, and I was pleased to be able to respond to it.
It is right to acknowledge at the outset that many developers routinely build roads in new developments to a high standard and in good time, and in many cases they are ready for adoption by the local highways authority. Where developers take the right approach, home owners should have little cause for concern. However, I am only too aware that that is not always the case. Some developers drag their feet in bringing the roads up to an adoptable standard, and as a result, even many years after a development has been completed, some home owners find that the roads remain unfinished and unsuitable for adoption by the highways authority. That is not acceptable.
My hon. Friend the Member for St Albans spoke eloquently about the problems that can arise in such cases. The obvious point is that poor road quality is a daily frustration for residents, but I am aware that in more extreme cases, there are concerns about damage to vehicles, the ability to enforce speed limits, and the removal of abandoned vehicles. Such problems can and do occur on unadopted roads. The issue of access for emergency vehicles has also rightly been raised with us.
I am aware that the concerns are not confined to my hon. Friend’s constituency. As she mentioned, it was estimated that there were around 40,000 unadopted roads across the country in 1972. Since then, some roads will have been adopted, while new roads will have been built but not yet adopted. As a result, there have been calls for the Government to conduct a national survey of private roads to bring the estimate up to date—something to which she referred.
While I am sympathetic to the problem, I am not convinced about the value of such a survey. First, any survey of private streets would reveal a large number of streets that are never likely to be suitable for adoption, and in which my hon. Friend is not interested—farm tracks, service roads, back alleys and suchlike. Secondly, any survey would reveal some private residential streets where the residents bought their properties in the full knowledge that they would retain responsibility for ongoing maintenance, and probably—or perhaps—benefited from that being reflected in the purchase price. In many of those cases, residents are quite happy to live on a private street.
In a specimen survey of 600 private streets, 63 were suitable for adoption, but only in 17 cases did the majority of the frontagers want the street adopted; that leaves 46. I accept that that is a small survey, but it might give some flavour of the position out there in the country. To deliver useful conclusions, any national survey would need to identify not only the number of private streets, but the number of streets that could be made suitable for adoption, and that residents actually wanted adopted. As I am sure my hon. Friend will appreciate, such a survey would be large-scale, costing a significant amount of taxpayers’ money, and I am not persuaded that it would offer value for money, particularly at this time. I am not sure how such a survey would help us move forward. We are fully aware of the problem and sympathise.
Mrs Main
I completely accept that a survey would not be a value-for-money thing and is not likely to happen. That is why I believe that talking to the local authorities might be useful. They will be aware of which roads people would like adopted but are frustrated that they cannot have adopted, and in which cases roads are not adopted, but nobody wants them adopted and everyone is fine with that. That is why I felt that talking to the local authorities could be the way forward.
Norman Baker
I agree with that, and we are talking to local authorities. I will come to that in a moment. The issue is not quantifying to the nth degree exactly how many unadopted roads there are, but ensuring that we have a full picture in the Department of the problems that arise, so that we can identify solutions to move forward. That is what I am trying to do in my role.
There must be two elements to any sensible strategy. The first element is to ensure that the best possible use is made of the powers already available to local authorities. They are not perfect, but the powers are there. I spoke in some detail to my hon. Friend the Member for Kettering about the existing tools, including planning conditions, adoption agreements and the advance payments code. I accept that there are limitations in respect of some of those matters. The second element is to consider whether the existing tools can be made more effective through changes in legislation.
On best use of the existing tools, as I indicated in a previous debate on the subject, planning circular 11/95 sets out the uses for planning conditions, and the courts have further clarified their use, setting out clear criteria. Rather than occupying the time of the House by repeating what I said previously, I refer my hon. Friend the Member for St Albans to that previous debate for further background information on that point.
The circular also states that conditions may be imposed to ensure that the development proceeds in line with locally defined needs. For example, a condition may be imposed to ensure that necessary infrastructure is in place before full occupancy of the site. I understand that this type of condition has been used to secure highway infrastructure where a development would have an adverse impact on the highway network. That is particularly important where sites are to be delivered in phases, as it allows a compromise between the needs of the developer to build and sell the site in phases, and the needs of the highways authority to ensure a safe and suitable standard of road.
The planning condition route allows the local authority and the developer to discuss and agree the needs of the site, and to take them into account for the benefit of future occupiers of the development. The Planning Inspectorate can provide model conditions to give guidance to local authorities where particularly problematic issues have been identified. My hon. Friend the Member for St Albans might like to know that at the request of the Department for Transport, and indeed the Department for Communities and Local Government, the Planning Inspectorate is developing a model condition to assist with the problems raised in places such as Kettering and St Albans.
My hon. Friend referred in passing—indirectly, at least—to problems potentially arising between two-tier authorities. I am familiar with that situation in my constituency, where we have a district and a county council. This is not necessarily a legislative problem, but in some cases local authorities—district and county—do not work together as well as they might. It is important that that is pursued from a local angle. Clearly, any changes to local government functions are a matter not for the Department for Transport but for my colleagues in the Department for Communities and Local Government.
Coming back to the model condition, it could offer increased consistency and certainty for authorities, some of which have voiced uncertainty about how planning conditions can be used robustly to specify highway standards, in line with the national policy set out in planning circular 11/95. I accept that no model condition would offer a one-size-fits-all solution; it would need to be adapted by individual authorities to suit the circumstances of particular developments. A carefully designed model planning condition that can be adapted for use in particular local circumstances could offer a useful way forward. Local councils in the constituency of my hon. Friend the Member for Kettering have certainly indicated that they would find that helpful.
I said in response to the previous debate on the subject that I would be prepared to explore potential legislative options, and I am happy to reaffirm that commitment. There are two particular aspects of primary legislation that have been identified by highways authorities as being in need of review. The first is the so-called advance payments code, to which my hon. Friend the Member for St Albans referred, which forms part of the Highways Act 1980. The original purpose of the code was to allow highways authorities to secure a payment or security from developers to cover the cost of making up the road to an adoptable standard, in the event that a developer failed to do so. The payment or security would be available when a development reached a certain stage, at which point the frontagers could require the carrying out of street works and the subsequent adoption of the road. In effect, the deposit or security covers the liability of the owners of the new homes for the cost of making up the street that would otherwise fall to them.
My hon. Friend the Member for Kettering was concerned that funds under section 38 cannot be accessed by the highways authority unless the developer goes bust. We understand from the local authorities with which we have discussed the matter that they have difficulty accessing funds deposited by developers, and we will examine that issue with authority representatives as part of our review of section 38 and other elements of legislation. I hope that is helpful to my hon. Friend.
Currently, under the Highways Act 1980, there is a six-week window in which the highways authority can request a deposit or security. I am aware that the usefulness of the code is weakened because, in many cases, there is no longer any reliable mechanism to make the highways authority aware of the start of works on a particular development, particularly in a two-tier arrangement. As a result, the authority will not necessarily become aware of the need to request a deposit or security until after the six-week window has passed. I think that there is a good case for extending that window, but I am advised that unfortunately that would require primary legislation to amend the Highways Act 1980. That has become the issue, rather than the assessment of the applicability or suitability of the existing condition.
Before I move on to my conclusion, I will refer to the second aspect of legislation that is in need of review, which is section 38 of the Highways Act 1980.
Norman Baker
We will look at how far we can get down the track. We want to get as far down it as possible, including through changes to legislation, if we can make them. Certainly we will do what we can short of introducing legislation, if that approach is necessary.
Section 38 of the Highways Act 1980 is a well-used mechanism that can be very effective where a developer is prepared to commit to making up new roads to an adoptable standard. I am aware, however, that the existing arrangements place no obligation on developers to enter into such an agreement, even if the authority is clear that that would be squarely in the public interest. In the debate on 10 June, I indicated to my hon. Friend the Member for Kettering that I was exploring that matter with the Department for Communities and Local Government to see whether we could have
“options for legislation, including empowering local authorities to require developers to enter into section 38 agreements.”—[Official Report, 10 June 2010; Vol. 511, c. 578.]
We have had initial discussions with representatives of the Department for Communities and Local Government on the subject. They were not unsympathetic, but the issue, both in that case and with regard to advance payments under the Highways Act 1980, is simply finding a window for legislation. Both my hon. Friends will be aware that the coalition Government’s commitment is to give priority in legislation to the elements that were included in the coalition agreement, so that we can be seen to be delivering properly on what we promised the public. It is a question of how much traffic one can get on the bridge at any time. That does not mean that action will not happen, but it means that the issue will have to take its place in the queue. We will do our best in our Department to try to find a way to progress the matter, either through primary legislation or through some other means that helps move matters forward in a productive way.
The Department for Transport had a constructive meeting earlier this year with council representatives from the Kettering constituency, which was helpful in establishing the nature of the concerns and providing an initial view of some potential solutions. I am now keen to move forward by inviting—