The adoption of highways and associated drainage built as part of new development requires careful consideration early on in the process. Unexpected issues relating to land ownership and unforeseen Local Highway Authority (‘LHA’) requirements frequently arise and can have a severe impact on the timely delivery of schemes. In this article, we discuss the key stages in the adoption process that lead to highways becoming maintainable at public expense and the most common pitfalls that occur during the process.
Highway Adoption
There are a variety of methods through which a highway can be adopted. In the context of new development and where the subsoil of the proposed highway is owned by the developer, the most popular mechanism used by LHAs is to enter into an agreement under Section 38 of the Highways Act 1980 (‘s.38 HA 1980’).
s.38 HA 1980 gives LHAs the power to adopt new highways by agreement, it also places a duty on LHAs to maintain adopted highways at public expense and provides for payment to LHAs for highway works and their maintenance. The developer must construct streets to an agreed standard, having secured technical approval of the LHA to the designs. The s.38 agreement sets out the obligations of the developer to construct the streets and to maintain them for a set period (normally 12 months). Following the satisfactory discharge of these obligations, the new streets are automatically dedicated as public highway and are maintainable at the public expense.
Highway Drainage Adoption
Normally an agreement under s.38 HA 1980 will show the extent of the works to be carried out prior to adoption and this will normally include the highway drainage works.
Once the highway is adopted pursuant to s.38 HA 1980, the highway, together with the materials and scrapings (i.e., surface material) of it, vests in the ownership of the LHA although this does not include the subsoil which remains in the ownership of the person dedicating the land as highway. Consequently, highway drains constructed as part of the work in the s.38 agreement will normally vest in the LHA. The LHA has a statutory duty to maintain the highway and highway drains.
Common Issues
- Developers should satisfy themselves that the approved drawings submitted as part of the s.38 application are accurate. In particular, that the proposed highway (usually outlined on the approved drawings) meets the existing highway and there is no gap where the two meet. Failure to do so could result in the LHA refusing to adopt.
- Developers should be satisfied early on that the proposed highway (including margins required to achieve the necessary visibility standards or maintenance of the infrastructure) falls entirely within its ownership or third party owners are able and willing to sign up to the agreement if it does not. Further, that the ownership boundary either meets or extends beyond the existing highway as a developer cannot dedicate land it does not own. In these situations, the road (or footway, cycleway etc) could be adopted under Section 228 of the Highways Act 1980. There is usually an element of commercial risk here, as s.228 requires works to be undertaken before a developer can know for certain that the adoption will be approved and the use of this power by the LHAs is discretionary. However, if it concerns a comparatively small area of land which forms part of a wider scheme of access works the LHA will often agree to it.
- Developers should also be aware that most LHAs will not complete a s.38 agreement until it has received a signed and completed s.104 Agreement which confirms any drainage/sewer network that falls outside of the proposed highway boundary have been adopted by the local sewerage authority. In addition, a sewer or drain that is vested in a water and sewerage company by an agreement under section 104 of the Water Industry Act 1991 will not be the responsibility of the LHA, even if the highway drains into them. Consequently, if drainage was provided for the purpose of draining the highway as part of the works to provide the highway adopted under the s.38 agreement, the drains should be included as part of the adopted highway and maintained by the LHA. The LHA, however, does not have any rights to access third party land to carry out any maintenance and any such access would have to be agreed by the landowner (usually by entering into a Deed of Easement). Highway drains will normally drain into a public sewer under the highway which is maintained by the sewerage undertaker which has powers to carry out works to maintain that sewer. However, discharge rights will usually be required if highway water outfalls into a private system.
- Areas proposed for adoption should include any specific design features such as regulatory signs, street lighting and speed restraint points at the design approvals stage.
- It is becoming more common that areas of land initially under the control of the developer at the time the s.38 agreement is signed are then subsequently sold off to house buyers. The developer cannot therefore dedicate such areas as publicly maintainable highway. The developer should negotiate as soon as possible with house owners for these areas to be dedicated to prevent lengthy delays.
- Finally, there may be issues relating to safety audits that are required during various stages of the s.38 process. Developers should ensure that they appoint the required highway safety auditor in good time to prevent any delays to adoption.
For more information please contact David Richardson in the Planning Team.
