Highways issues in respect of development

A planning application for development must include a red-line plan identifying all land to which the application relates and this should encompass direct access to a public road. When a developer is considering any land for potential development, at the outset they should check that the land directly adjoins the publicly maintained highway and there are no ransom areas preventing such access.

If there is a ransom area preventing access to the publicly maintained highway, a developer would need to take active steps to secure the appropriation of the relevant land from the third party owner if it intended carrying out development following a grant of planning permission. If the developer was not able to procure such a ransom area from a third party, it would not have the ability to carry out the development even if a planning permission had been granted.

There can occasionally be situations where there is an area of unregistered land between the land subject to an application and the publicly maintained highway. This can present a problematic state of affairs because in most cases there will not be any means to identify any owner of the unregistered land, but at the same time the developer would not have the ability to dedicate the unregistered land as highway to the local highway authority. This creates a situation where access cannot be adequately secured to the publicly maintained highway and this can have the potential to frustrate the development itself. In this scenario, the recourse available for a developer would be to ask the local highway authority to acknowledge the unregistered land as a private street and then use its powers to serve a notice under section 228 of the Highways Act 1980 declaring it part of the highway. Following service of the notice there would be a one-month period for objections to be made by anyone able to claim ownership of the unregistered land and in this time it would theoretically be possible for an objection to be submitted by a third party who had evidence to claim ownership. If the one-month period was to expire without any objections, the unregistered land would then be added as publicly maintained highway and this would provide full access to the development land.

As an alternative to a notice under section 228 of the Highways Act 1980, a developer could seek to obtain indemnity insurance to protect against the risk of an unidentified third party owner frustrating the development by coming forward and claiming ownership of the unregistered land. In respect of a residential development, an indemnity policy may provide necessary protection to potential plot purchasers with regard to this risk.

In most situations the development land will adjoin the publicly maintained highway and following the grant of a planning permission the developer would ordinarily enter into an agreement with the local highway authority under section 38 of the Highways Act 1980. A section 38 agreement would secure the construction of access roads (with associated highways such as footways and footpaths) necessary to serve the development and their subsequent adoption as publicly maintained highway by the local highway authority on satisfactory completion. Drawings and plans showing the specification of the roads would ordinarily be appended to a section 38 agreement and a developer would be required to construct the roads in accordance with the said details. Under a standard section 38 agreement, it is likely that the developer would need to provide a bond or cash deposit as security for the cost of the construction of the road. The local highway authority would be entitled to call upon the security in the event that the developer did not satisfactorily complete the road in accordance with requirements of the section 38 agreement or went into liquidation or became insolvent. On completion of the roads, the local highway authority would then issue a final certificate and the roads would then become maintainable by the local highway authority at public expense. Following this adoption by the local highway authority, the developer’s responsibility for the roads would cease. Even if the roads serving a residential development hadn’t been adopted at the time a residential unit was occupied, a completed section 38 agreement would provide assurance to a purchaser that access has been adequately secured.

If a local highway authority was not willing to enter into a section 38 agreement or details relating to the specification of the highway works could not be agreed, then the developer could seek to transfer responsibility for maintenance of the roads to proprietors of the land subject to the development and the roads could be maintained as a private street. Alternatively, the developer could seek to transfer responsibility for maintenance to a management company.

In respect of developments of substantial scale, the local highway authority will often require improvements to the adopted highway within the vicinity of the site in order to mitigate the highways impact of the development. By way of example, in respect of large developments a road within the vicinity of the site may need to be widened or a pelican crossing could be required in order to offset the impact of extra traffic generated from the development. Such off-site highway works would ordinarily be secured under a planning condition on the planning permission and the said works would then be dealt with by the developer entering into an agreement with the local highway authority under section 278 of the Highways Act 1980. Under the section 278 agreement, the developer would be granted permission to appoint a contractor to undertake the works or the agreement could require the council to undertake the works on the developer’s behalf. The local highway authority would ordinarily require a bond to secure the cost of the highway works, which could be enforced if the highway works were not constructed in accordance the requirements of the section 278 agreement. Conditions on planning permissions can occasionally require the completion of highway works prior to first occupation of the development and section 278 agreements often need to be progressed promptly following the grant of a planning permission.