New Roads (Adoption)

Andrew Percy Excerpts

Thursday 10th June 2010 Commons Chamber

[Mr Hollobone]

If the street has not been adopted, the responsibility for maintenance rests with the owner or, more usually, the frontages—the owners of the properties that front on to or abut the streets concerned. Those purchasing a property in an unadopted street should be advised of its status and the implications by their solicitor. I fear that in all too many cases people who purchase properties in unadopted streets are not being advised of the potential liability that they face. My first request tonight to those on the Treasury Bench would be to look at ways in which the estate agents code or the solicitors code could be revised so that purchasers of property in such roads are advised of their potential liabilities. I know that that is not the direct responsibility of the Minister who is being kind enough to reply to the debate, but I would be grateful if he passed it on to the relevant Minister or Ministers with responsibility.

This issue is important for places such as Kettering, because we are experiencing rapid housing growth. Under the present housing targets—they could be revised, and I hope that they are—the number of houses in my constituency is set to increase from 36,000 at present to 49,000 by 2021. That is an increase of one third. Potentially, in the next 11 years, one third of the residential roads in my constituency could be unadopted.

If a road is not adopted, there are lots of potential problems. For a start, almost by definition, the standard of the road surface and the pavement treatment are not up to the requisite Highways Authority standard. In the sort of estates concerned, the size of the kerb between the pavement and the road surface is often far bigger than normal, and represents a major trip hazard, especially for elderly residents, and many difficulties for young mums with pushchairs. I have had representations from local residents of Mawsley, a village in my constituency, on that very issue.

Developers are also responsible for the street lighting in those roads until they are handed over, and it is often substandard. Other issues include local authority access. There are places where local authorities will not send in rubbish carts to collect rubbish because of the lack of suitable access. Furthermore, speeding and parking enforcement cannot take place because the roads are not adopted. The Poppy Fields development in Kettering, close to Kettering general hospital, frequently experiences nuisance parking, but the county and borough councils can do nothing to address it. They cannot put in yellow lines or residents’ parking, because the highway is not adopted and is therefore not the responsibility of either local authority.

When I looked into this issue, I was staggered to learn that the Government have no idea how many unadopted roads there are in this country. I pointed this out to the Minister’s predecessor and he did not seem very concerned. However, I am hugely concerned, because the available figures suggest that there are some 40,000 unadopted roads with a total length of 4,000 miles. However, those statistics come from 1972, and no attempt has since been made to revise them. One of my requests to a previous Transport Minister was that the Government try to collect more up-to-date data on the extent of the problem, and I pass that request on to the new Transport Minister. I would think that a basic requirement to establish the full extent of the problem.

The difficulty is that there is in law no effective mechanism for the local highways authorities to force developers to get the roads up to the requisite standard so that they can be handed over to public authorities for adoption. Various mechanisms are in place, but when it comes to the crunch, they are effectively toothless. The main problem is section 38 of the Highways Act 1980. Following the debate I secured on this subject, with the permission of the Speaker, on 11 November last year, a previous Transport Minister made one concession: I could meet his officials to talk about the matter. I am pleased to say that, after much effort on my part to hold him to that kind offer, a meeting took place in March this year.

I and senior representatives from Kettering borough council and Northamptonshire county council met in the Department for Transport with some extremely helpful officials, and we made quite a lot of progress. A number of suggestions were made, not least that we find out the extent of the problem around the country. I am pleased to say that Northamptonshire county council contacted its colleagues around the country and was overwhelmed by the response. I shall read out some of those responses. Hampshire country council said:

“We have had our fair share too”.

Staffordshire county council said:

“We certainly had issues with developments where progress has been slow and sewers hadn’t been adopted.”

Worcestershire county council said:

“This as you would expect is also a fairly major irritation in Worcestershire.”

Devonshire county council said:

“I can confirm that we certainly have such problems in Devon, most notably relating to delayed adoption of sewers”.

Hertfordshire country council said:

“Very much an issue here in Herts.”

Indeed, my hon. Friend the Member for St Albans (Mrs Main) is very concerned about this issue, and is also seeking to get involved with it.

[Andrew Percy (Brigg and Goole) (Con)]

My hon. Friend is listing the areas of the country where this is a concern, but he has not mentioned—he might not know about it, of course—the situation in the East Riding of Yorkshire, in my constituency, particularly in Hook and the small town of Snaith, where there are several examples of developments where this has happened. This is, indeed, a national problem. As he has intimated, people look to their local authorities for support on this matter, and they ask, “Why are we continuing to pay council tax when we are not getting the same access to services as other council tax payers?” The local authorities are in a difficult position, and this is a big issue in the East Riding of Yorkshire and throughout my constituency. As he said, we need national and Government leadership, because it is not acceptable for his and my constituents to be left in limbo as they are now.

[Mr Hollobone]

My hon. Friend is spot on. He is absolutely right, and I am grateful to him for adding the East Riding of Yorkshire to my list. If he will encourage his colleagues there to reply to Tony Ciaburro at Northamptonshire county council, we can complete this list and send it to the Government. That was a most helpful intervention.

I shall continue with the list. Lincolnshire county council said:

“We have had some problems over the years.”

Dorset county council said:

“Confirm this is an issue in Dorset”.

Northumberland county council said:

“NCC and most other Highway Authorities experience exactly the same difficulties.”

Essex county council said that

“we certainly have our fair share of these in Essex.”

Cambridgeshire county council said:

“It is certainly a problem in Cambridgeshire.”

Derbyshire county council said:

“The Highways Act is out of date.”

Staffordshire county council said:

“Similar problems in Staffs together with another issue related to roads constructed by developers that are not intended for adoption.”

Wiltshire county council said:

“Wiltshire certainly has its share of problems.”

Oxfordshire county council said:

“I agree that the legislation as currently set out is well out of date and needs to be re-written”.

Flintshire county council said:

“The problem with unadopted roads that you have highlighted are being experienced throughout Wales…Winter maintenance was a major issue on these roads this last winter, particularly on parts of housing estates which appear to be completed but weren’t obviously adopted.”

That last point is very helpful.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Transport (Norman Baker)]

I begin by congratulating my coalition colleague, my hon. Friend the Member for Kettering (Mr Hollobone), on securing his second Adjournment debate on this issue and on providing the House with a further opportunity for debate. I also thank him for the very positive way in which he has progressed this matter. I know that he raised it with my predecessors, as he mentioned, and that he has had the opportunity, along with representatives of the local district and county councils, to discuss his concerns in more depth with Department for Transport officials, to which he also referred in his contribution. I think he is right to pursue this matter, as are the other Members who intervened on him. Indeed, I might add, from a local perspective, that I am aware of a similar issue in my constituency at a street called August Fields in Newhaven. I thus have some sympathy with the points that my hon. Friend raises. We at the Department for Transport expect all property developers to build roads to a high standard, so that they are ready for adoption by the local highways authorities as a matter of normal practice. However, I recognise that that is not always the case, as my hon. Friend highlighted.

It may help if I begin by outlining the powers that are currently available to local councils to ensure that new streets are built to a decent standard, and the two mechanisms by which those streets, once finished, can be adopted by the highways authority. I will then go on to discuss the concerns raised about the effectiveness or otherwise of these mechanisms.

The uses of planning conditions are set out in planning circular 11/95, to which my hon. Friend also referred. It states that the local planning authorities may impose conditions regulating the development or use of land under the control of the applicant, even if it is outside the site that is the subject of the application. Conditions should normally be consistent with national planning policies as expressed in Government circulars and planning framework documents. They should also normally accord with the provisions of development plans and other policies of local planning authorities. However, it is still necessary to consider whether a condition is justified in the particular circumstances of the proposed development.

In general, conditions that duplicate the effect of other legislation should not be imposed. It is for the local planning authority in the first instance to judge, on the facts of the case, whether a particular development proposal should be approved, subject to planning conditions. Reasons must be given for the imposition of every condition. Reasons such as “to comply with the policies of the council”, “to secure the proper planning of the area” or “to maintain control over the development” are vague, and can suggest that the condition in question has no proper justification. Successful challenges in the past might have been due in part to lax phrasing of conditions.

On a number of occasions, the courts have laid down the general criteria for the validity of planning conditions. In brief, these explain that conditions should be necessary; relevant to planning; relevant to the development to be permitted; enforceable; precise; and reasonable in all other respects. Of those six, I feel that my hon. Friend will be most interested in the fourth—enforcement. A condition should not be imposed if it cannot be enforced. There are two provisions that authorities may use to enforce conditions: an enforcement notice under section 172 of the Act, or a breach of condition notice under section 187A.

Given the above, it would be possible for local planning authorities to devise and agree with the developer through the pre-application negotiations, a suitable condition to ensure that those roads that will service the new development are brought up to the adoptable standard. I understand that, in some cases, this period of time may stretch over a number of years, especially in phased developments. People have, of course, moved into their houses in the meantime, and we may find occurring some of the problems to which my hon. Friend referred—lighting not working at that point, rubbish not being collected, and so on.

[Andrew Percy]

All that is fine and good, but part of the problem is that when some of these developments are constructed, the builder can go bankrupt or disappear, leading to an utter lack of understanding of who is then responsible—and local authorities find themselves constantly in the middle. As I say, it is when builders go bust that the real problems develop.

[Norman Baker]

I entirely understand that point and the frustration felt by some Members, but I urge my hon. Friend to be patient: there may be some better news in a few moments.

I understand that in some cases the period involved may stretch over a number of years, but circular 11/95 states that conditions may be imposed to ensure that development proceeds in a certain sequence when some circumstance of the case—for example, the manner of provision of infrastructure—makes that necessary.

The authority can require a developer who is building a new property on a private street to enter into the advance payment code agreement mentioned by my hon. Friend the Member for Kettering. That means that the developer must deposit the money required to make up the street to the required standard. The amount is paid by the developer and put into a segregated account. After the building has been completed, the money, including any interest, is used to make up the street, any difference being the responsibility of the frontagers. I accept that that is not a perfect solution.

Alternatively, the developer can enter into a legally binding agreement with the authority to build the street to the required standard. In return, the authority will agree to adopt the road once it is finished. That is known as a section 38 agreement under the Highways Act 1980. Once the street has been finished, the authority will inspect it to ensure that it has been built to the standard that has been agreed to. If that is the case—or when the developer has made good any deficiencies—the authority will adopt the road. That guarantees to anyone who purchases property on a development that the road will be finished to an acceptable standard, and that they will not be liable for any future charges.

Those mechanisms give highways authorities the necessary tools both to manage the development and adoption of new roads and to reassure property owners that the road in question will be maintained by the highways authority. They also protect council tax payers. Authorities have no liability to pay for the uplift of poorly built roads from the public purse, as it would not be fair for council tax payers to subsidise new developments in that way. Highways authorities are among the statutory bodies that should be consulted about planning applications by the planning authority; in areas where there are two tiers of local government, the same council is obviously not involved. That provides an opportunity to ask for planning conditions to be made, or to allow the highways authority itself to enter into an agreement with the developer under section 38 of the Highways Act for the adoption of the highway at a future date.

It is currently for highways authorities to decide how to use those powers, as they are best able to judge local needs. Not every street will need to be adopted, as some property owners will want to reside in a private street. The highways authority should consider both their needs and any issues created by the type of development on a case-by-case basis.

My hon. Friend the Member for Kettering referred to the number of unadopted roads. Of course it is important for the Government to be aware of the scale and nature of public policy questions in this area. I, for one, accept that the views that have been expressed by Members this evening could be expressed by other Members, because the problems affect constituencies throughout the country. As my hon. Friend suggested, there are about 40,000 unadopted roads in the UK, according to a 1972 survey. I am afraid that there are no more up-to-date figures. However, knowing the number of unadopted roads would not really provide the context, because the vast majority—farm tracks, private estates, service roads and so on—are not really relevant to the issues in question, and it is not necessarily sensible to spend scarce public money on gathering information unnecessarily.

The people who know their areas best are members of local authorities and, of course, Members of Parliament. We greatly appreciate the work that local authorities and Members have done to bring particular problems to our attention and to gather other views and suggestions from around the country, as my hon. Friend the Member for Kettering has done so ably. The Department has acted on that information. Since the last debate, my officials have met representatives of Northamptonshire and Kettering local authorities to discuss further the points raised today, as such fast-growing areas are the most likely to have to manage issues of this kind.

The Planning Inspectorate provides model conditions to support local authorities in relation to issues that have been identified as problematic. It is in the process of developing a model condition—this was one of the requests made by my hon. Friend—to assist with the problems raised by Kettering. Local authorities will, of course, need to consider carefully the wording of any such condition to ensure that it suits the particular case, and to provide a clear and robust reason for its use in that instance. However, I hope that my hon. Friend considers that to be a move in the right direction.

We are working closely with colleagues in the Department for Communities and Local Government in considering ways of helping local authorities who are struggling with this problem, and both Departments are in correspondence with Kettering. We are open to practical proposals from authorities such as Northamptonshire and Kettering on how the existing mechanisms can be made to work better. I would welcome any comments from any other Members, or from any other authorities anywhere in the country that wish to contribute to the process.

In exploring solutions to this issue, I am happy to say that I have today asked my officials to consider, with their Department for Communities and Local Government colleagues, options for legislation, including empowering local authorities to require developers to enter into section 38 agreements. In the meantime, we will continue to engage with local authorities and to support them in developing solutions.

My hon. Friend the Member for Kettering talked about the fact that some people who purchase properties are unaware of the status of the road. I am advised that householders have some redress against solicitors who have not undertaken full and proper searches. Such action can be enforced through the Law Society. I am also advised that the estate agents’ code of practice, although voluntary, is usually followed and that they should be expected to provide information to property purchasers in that situation.

I recognise that this is an important issue. I want streets, when they are developed, to be adopted by the relevant highways authority if that is what is right for the street in question, as it usually will be. Good developers will build streets to a standard that authorities can adopt, thereby transferring the responsibility for maintenance away from property owners. I would like that practice to become commonplace, but I also understand that a small number of developers will not build to that standard without local authority intervention. I am, therefore, as I have said, open to practical suggestions as long as they would place the cost on the appropriate people and could be implemented quickly so that authorities can better manage the situation.

I congratulate my hon. Friend again on raising this relevant issue. There is considerable force behind his arguments and I hope that the steps I have taken in the short time I have been in office will help to bring about a solution that will render some of these problems redundant.

Question put and agreed to.