The Retreating Public Realm

Staying with a conveyancer friend over the weekend, conversation got on to the topic (as it does…) of whether I could poison pill the bottom half of our garden by selling patches of the land to other people that would make it difficult for a future owner of the house to sell the land for development. It seems it’d be easy enough to write an agreement sell small parcels of land, but with it would come a right of access for the new owner, which would create a right of way through the rest of the garden to that piece of land.

Discussion then moved to the practices of developers of new builds. The house we were staying in was on a development with off-road parking for one (at a push, two) cars, plus a garage. In the centre of the development were additional, numbered parking areas allocated to certain houses, for a fee. Signs loudly declared the private land nature of these spaces with warnings about fines for unauthorised use.

In many cases, it seems that developers are also creating developments where the road access remains a private road, unadopted by the local authority. According to Private, or ‘unadopted’ roads in England and Wales,  House of Commons Library Briefing Paper SN00402:

There are two main types of private or unadopted road: those on new developments such as housing estates and those which, usually by historic accident, have existed for a long time, often since the nineteenth century.

The law on the maintenance and adoption of private roads in England and Wales is highly complex. It is largely contained in Part XI of the Highways Act 1980. Briefly, a private or unadopted road is by definition a highway not maintainable at public expense. The local highway authority is therefore under no obligation to pay for its maintenance. Responsibility for the cost of maintaining a private road rests with the frontagers (the owners of properties which front onto such roads).

[The Act] further requires every local highway authority (unitary and county councils) “cause to be made, and shall keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense”.

But presumably there is no list of unadopted roads.

I don’t recall offhand what, if anything, the Isle of Wight’s recent planning consultation had to say about the desirability, or otherwise, of adoption of roads on any new builds applied for in allocated planning areas. But this retention of the private ownership of roads by developers rather than their admittance into the public realm, is another example of the erosion of ownership rights in favour of negotiated rights of way or management fees and rental agreements associated with communal areas in the “wider estate” of the development on which you live. You did read all the terms of the license agreement before you clicked “yes”, didn’t you?

The briefing also notes on the subject of parking:

Generally, there is no general right to park in a private or unadopted road except for the owner of the road. In practice parking may be permitted or tolerated by the owner (in which case there is a licence to park) and in some cases a legal right may have been granted by the owner. As Barsby [Private Roads: The Legal Framework (5th ed.), 2013] explains, parking in a private or unadopted road without permission or a legal right to do so is trespassing, and is a civil wrong for which redress can be obtained. The wrong is done to the owner of the road or, if different, the person in possession of it[.]

So if you try to park on the (private) road outside your house…

As described in Homeowners trapped by ‘fleecehold’ – the new cash cow for developers, The Guardian, 2 Dec 2017:

Thousands of homeowners on private estates are facing unregulated and uncapped maintenance fees, amid allegations that developers have created a cash cow from charging for communal areas not maintained by the council. Management contracts for “unadopted” private estates are frequently sold off to speculators and property management companies in the same way as freeholds and ground rents – leaving homeowners with spiralling fees and nowhere to turn. If a new-build estate is “unadopted” it means communal areas such as roads, grass verges, pavements and playgrounds are retained by the developer. The developer then usually sub-contracts day-to-day management.

Which makes absolute sense for the developers. In the first case, it is likely to be cheaper for developers not to take the road fully up to the standard required for adoption. If such costs are typically passed on to original buyers, this should have the effect of reducing the first sale price of each dwelling. Which is good for consumers, right? Good for affordability? Only, it isn’t, because in perpetuity you may well have to pay a drip-drip amount that will make the total cost of ownership more expensive.

Developments that do not end with adoption of roads may also be attractive to councils because it means they aren’t directly tasked with maintenance of the new roads. (I wonder: could planning applications actually be refused by the local authority if they don’t want to enter into “Section 38 ” agreements to adopt roads submitted as part of the planning application?)

A post on the New Home BlogWhy are private roads so common on new housing developments?, May 4th, 2016— identifies several other possible disadvantages, including: maintenance costs for shared driveways and sewer drainage; clearing up contaminated land if the home was built on a brownfield site; serious disrepair, [in which case] local authorities have discretionary powers to improve the standard of any privately-owned street at any time and [require] contribut[ions] to the cost.

Private roads may also be narrower than publicly adopted roads and with lower specification street lighting.

The post also suggests that “[t]he Local Authority will probably not: grit the roads in icy conditions or clear heavy snowfall; carry out road sweeping or drain gully clearance. Refuse collections may not even enter the private road.

There may be a way for home-owners on a development to extend the public realm though. As the HoCL briefing describes, home owners are in a position to request adoption of the road, if enough of them agree:

Section 228(7) states that, where all street works in a private street have been executed to the satisfaction of the street authority, the street authority shall declare adoption of the street if so requested by the owners of properties which together account for more than half the rateable value of the street: If all street works (whether or not including lighting) have been executed in a private street to the satisfaction of the street works authority, then, on the application of the majority in rateable value of the owners of premises in the street, the street works authority shall, within the period of 3 months from the date of the application, by notice displayed in a prominent position in the street, declare the street to be a highway which for the purposes of this Act is a highway maintainable at the public expense and thereupon the street shall become such a highway.

However, even there the developers may try to stymie that. As the New Home Blog post warns:

Buyers should also be aware of housebuilders adding a clause like this: “17. Not to make support or procure any application to secure the adoption of the Estate Roads as publicly maintained highways pursuant to Section 228 of the Highways Act 1980 or any statutory re-enactment thereof or any other similar statutory provisions and if required by the Landlord to object to any such application.”

You did read the terms and conditions, right? And think the consequences of them through? (That must surely be an unfair contract term, mustn’t it?)

PS one for me to go back to check on the Isle of Wight Planning consultation: was there any mention of section 38 adoption in the document? Are there any metrics regarding tracking of section 38 adoption on developments pursued on allocated areas? Is the council interested in the extent to which home owners on new developments are likely to be tied into maintenance agreements arising from builds on private roads owned by the developers or thence sold on to management companies, particularly for “affordable” developments? Would the council seek to protect the rights of home owners by rejecting applications for developments that included clauses like a possible “clause 17” as identified above?

Author: Tony Hirst

I'm a Senior Lecturer at The Open University, with an interest in #opendata policy and practice, as well as general web tinkering...

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