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"it is not a question of"
"putting enough pressure on the developers. Although we have the bond, we cannot use it without their agreement and they could withhold this unless we can negotiate it sensibly. This will take some time. Otherwise we will be left with the status quo negotiations by"
Kettering borough council "in the original" section
"106 agreement, which means that adoption will not take place until the development is complete."
Therefore, the default position is that county councils can apply very little effective pressure to get developers of new residential housing development to comply, meaning that roads, highways and street lighting will not, in many cases, be brought up to adoptable standards until the entire development is complete. For many large-scale housing developments, that could take five, 10 or 15 years. Effectively, the ineffectiveness of the legislation is condemning hundreds of thousands of people in new houses up and down the country to live with substandard roads, pavements and street lighting.
I have had a lot of correspondence from Mawsley residents on the issue. One e-mail came from Emma Brown who, in her own time, voluntarily edits the newsletter that goes around the village. She states:
"As well as editing the village newsletter, I am also a childminder in Mawsley. I complete the school run by foot twice a day with up to 8 children at a time. My concern is that the crossings on unadopted roads seem to mean very little to motorists. In my opinion, they feel that a zebra crossing on an unadopted road has no significance. Everyday I stand with my children waiting for the
traffic to stop - they can see us but do not feel the need to let us cross...I understand that this is equally a matter of the motorists' respect for pedestrians, but I think it is important to make the point that, if the roads are completed and 'proper' crossings are put in place, the motorists will take the crossings more seriously...It is only a matter of time before an accident happens."
Another resident of Mawsley, Clare Farthing, sent me an e-mail saying:
"Basically we are a very young but growing village, as you are well aware, and we have a vibrant community, full of young families with children. The roads are beginning to become a real issue, not only for pedestrians (because of badly constructed curbs and potholes), but also for cyclists and cars. Without a robust infrastructure in place, it will become more of an issue. People are already falling over and injuries have been caused.
This is going to be an ongoing concern not only for Mawsley Village but for other new developments across the UK. There has to be a systematic approach to road adoption and developers need to be called to account before contracts are signed."
"This village is now the home of nearly 2,000 residents, most with young children and the risk to their safety is now becoming more and more prevalent. In fact a number of people are wondering whether to begin to start putting forward injury claims for slips and trips caused by uneven road surfaces, minor accidents caused by lack of road signs, traffic islands being put in unsuitable areas, the list goes on."
Stephen Pound: From whom would his constituents claim compensation?
Mr. Hollobone: The hon. Gentleman always asks very good questions. I would imagine it would be the developers, because-
Stephen Pound: They may have gone.
Mr. Hollobone: They may have gone, or have gone bust. Certainly, the county council would not be liable, because it has not adopted the roads. In many cases, there would effectively be no redress for what could be some very serious injuries.
I have given the Minister some photographs of the roads in Mawsley village, which show the extent of the problem. Unadopted roads on new estates do not have a top surface-in many cases, neither do the pavements-so the kerbs are very high compared to normal residential areas. That is a very real problem for young mums with buggies or prams and for the elderly, who are more at risk of tripping over. It can also cause damage to vehicles, if they scrape the side of the kerb.
Mr. Bone: I declare an interest as I lived on such an estate, with the raised kerbs, with a young child. I was told that the reason that the roads were not being adopted was not the developer's fault, but that of Anglian Water, because it had not done the sewerage. In his remaining time, perhaps my hon. Friend could develop that important issue.
Mr. Hollobone:
Sewerage is indeed a fascinating subject, and I am sure that many hon. Members might think of applying for a separate Adjournment debate on it. It involves section 104 of the relevant Act and is covered by different legislation. As usual, my hon. Friend is right: in many cases, the necessary water supply and sewerage works are not co-ordinated effectively with the construction of the highway. That is surprising, because one would think that the developers would want to get all that sorted out in the appropriate order. Sadly, because the developers know that the local authorities
cannot apply any effective pressure on them to get the roads up to a suitable standard, they are very dilatory about getting the pipe work sorted out. Later in my speech, I shall tell the House about a constituent who raised that very point with me.
Clare Farthing, in another informative e-mail, says:
"Sounds like the developers just don't want to take responsibility for their part of the original agreement which was, as I believe, to look after several grassed areas, replant trees, resurface roads to an acceptable level...I do know that there are several new villages in Northamptonshire who have experienced this problem...I am in touch with several resident groups at the moment who are all experiencing the same problem.
Is it sensible not to have any road signs, or pavements that are so awful small children are falling through cracks and verges are crumbling into the road? Can anyone else help? What is a sensible negotiation period? Surely people cannot in their right mind think that 8 years is an acceptable negotiation period? If I approached business with that sort of time line in place then I wouldn't be in business."
My constituent Mr. Fergus Macdonald, from Burton Latimer, has also taken up the issue. He told me of his concerns:
"There is no established procedure to ensure that the adoption happens in a timely manner... It is often in the developers interest to postpone the adoption as long as possible... There are too many parties (often with different agendas) involved in the process... The rules concerning the necessity of ensuring that the roads upon completion become adopted are somewhat vague... I would suggest that it would not be too difficult to ensure that at the planning application stage the time scales for adoption are agreed and financial penalties agreed if these are not met. I would quote to you the case in Burton Latimer where we are still seeking adoption some 9 years after the original completion".
That is an extremely good point, and one that Councillor Jim Harker, the leader of Northamptonshire county council, made to me today. There needs to be a mechanism by which the highways authority can ensure the phased adoption of roads on new estates, rather than leaving it to the very end.
Another constituent who has taken a close interest is Roger Knight. He told me:
"Improvements needed are: 1. To speed up the process requiring developers to sign up to a specific completion date after which the LA will deduct amounts per day (or week) from the deposited bond. 2. The bond itself is very difficult to find information about. When is it paid over by developers, who holds it and when is it paid back?... 3. There is often confusion between three levels of local government (in the shires). Planners, Highway Authority..., Water Authority and Environment Agency are adept at "buck passing". Parish Councils have no powers but could be helpful in checking that work is completed on time".
That is a very powerful point.
Roger Knight went on to cite the case of Hollow Wood road, Burton Latimer, built by Francis Jackson Homes of Olney. He wrote:
"This is a small development of 28 houses in a close. Built 2007-2009. Here the complaint is about the severe disruption to vehicular traffic as the pre-adoption work to drains and pathways has been"
"Inspection covers in the road were constantly lifted as leaks were corrected and access ladders installed. Why could the latter not have been installed at the time of the initial works?... Also in Burton Latimer the Hollands Drive developments, which was finished by 1999 is still not adopted."
He has been in touch with Fergus Macdonald, who I have already quoted, and who is the town councillor responsible for highway concerns. They both raised these issues with me. Roger Knight continued:
"My main contention is that house purchasers, who expect a property to be fit to live in before they move in, should have access in a safe and reasonable state. Perhaps a provision to enable the withholding of Council Tax until this happens could also speed up a process which sometimes takes several years to complete?"
The issue of council tax has been taken up by many people affected by this issue. There is even an e-petition on the No. 10 website that states:
"We the undersigned petition the Prime Minister to make significant reductions in Council Tax and Water Rates (e.g. 10-20%) payable in respect of homes on housing developments of more than 10 houses on unadopted roads."
The explanation on the details of the petition on the websites states:
"Council Tax is used to provide local services. Although residents benefit from services outside the immediate area of their homes, some services are not provided on unadopted roads (e.g. maintenance of roads, litter collection, emergency repairs to sewers and street lighting; and landscape maintenance). Residents therefore have to rely on the developers to undertake such work, which can take a long while, and standards can vary considerably in quality. Council tax should be proportionate to the levels and standards of service provided by the local and water authorities. Residents selling homes on unadopted roads may be required to deposit considerable sums of money as a bond to cover repairs etc. to unadopted roads. This undermines the value of homes and could be considered an additional tax."
My contention is this: unless the Government address that loophole in the law, there will be growing calls from up and down the country for an amelioration of council tax for those residents affected. At a time when the country is in such dire financial circumstances, I am sure that that is one campaign that the Government would be keen to resist.
My constituent Tom Sanders, whom I have mentioned already, has contacted me to say that, for him, the main issues are:
"Lack of maintenance on street and road traffic lighting. Road and pavement surfaces...trip hazards and incomplete drop crossings for pedestrian and disabled persons...Roads not gritted...during adverse conditions."
"The fundamental problems are: The adoption process is un-regulated within the building industry. Builders/developers can pay 'lip service' to basic maintenance service support without any accountability. The whole adoption process can be dragged out with no restraints on a reasonable time frame. The local authorities have no empowerment on the adoption process and can only rely on negotiation.
These problems have been evident for some time at Mawsley Village and the main developer, Taylor Wimpey, have been slow and reluctant in dealing with basic maintenance issues such as street lighting, road potholes and unfinished pavement surfaces.
Taylor Wimpey also appear to be apathetic in bringing the development up to acceptable standards on road and pavement surfaces whilst a handful of houses are still to be built and construction traffic could be diverted.
Therefore, my request to central government and the building industry is: Legislate regulations into the adoption process which provides maintenance services which the developer delivers on a par with the local authorities. This service is 'policed' or monitored by the NHBC"-
the National House-Building Council-
"with a 'one stop' call and complaints process. The adoption process should be progressive and where possible roads and
pavements should be finished off and construction traffic diverted to the remaining building sites (Mawsley Village is now almost 10 years old and not all the roads are finished)".
Mr. Sanders took his complaints to the developer Taylor Wimpey. He wrote to Mr. Askew, the head of the organisation, and received a very nice reply from Steve Farmer, the regional managing director. Mr. Farmer said:
"Mr. Askew has asked me to respond to you on behalf of Taylor Wimpey due to my involvement with the Mawsley development.
Your letter correctly suggests that the issues you have experienced on the Mawsley site are typical of those on many other developments throughout the country."
That is not me or my constituent saying that; it is a major house builder saying it. Mr. Farmer continued:
"Please let me know if you do not feel we are doing what we can, within our constraints, and I will investigate.
We feel that the general issue you raised is one that mainly effects large developments which do not have sufficiently phased section 38 and section 104 agreements.
It would be beneficial for developers to agree with local authorities at planning stage a phased policy for the development that would allow adoptions to take place at stages throughout the site.
Due to the experiences we have encountered on the Mawsley development this is a practice that we have already adopted on later sites.
In conclusion, we do recognise the issues raised and will work with the other parties involved to try and improve matters on developments in the future."
So there we have it: an admission from one of the major house builders in the land that the law is not as it should be.
I am most grateful to the Speaker for giving me permission to hold this debate. This is an issue of major concern that will affect an increasing number of people, not only in my constituency but across the country. It is also an issue that could be solved relatively easily with a bit of political will and drive from the Minister. It will not just be a matter for the Department for Transport, however; other Government Departments will need to be involved.
This is not a party political issue; it is a real issue of major concern that will affect lots of people up and down the country. There does not appear to be any legal requirement for developers to enter into a section 38 agreement to have roads adopted. Even if they do enter into such agreements, local authorities are unable to access bonded funds from them without the developers' consent. That is a major loophole in the Highways Act 1980 that this Government need to address.
8.41 pm
The Minister of State, Department for Transport (Mr. Sadiq Khan): I, too, thank Mr. Speaker for granting the hon. Member for Kettering (Mr. Hollobone) the Adjournment debate. I congratulate the hon. Gentleman on securing it, and on providing an opportunity to discuss the adoption of new streets, not only in his constituency but elsewhere. I should also like to put on record the fact that other hon. Members have been present and that the hon. Member for Wellingborough (Mr. Bone), and my hon. Friends the Members for Ealing, North (Stephen Pound) and for Northampton, North (Ms Keeble) have made excellent interventions and raised some important points, some of which I shall try to deal with in the two hours that I have in which to respond to the 50-minute speech made by the hon. Member for Kettering.
It might be helpful if I first set out the background to how a highway becomes maintainable at public expense by a highway authority-a process known as adoption. During the hon. Gentleman's 50-minute speech, we heard comments about regional bodies. Reference was also made to sewerage and to legal claims. I shall try to stay away from those subjects, and to respond only to the points that fall within the remit of the Department for Transport.
An unadopted street-or private street, as it is called in the Highways Act 1980-is a highway that is not maintainable at the public expense by a highway authority. The Highway Act of 1835 introduced the provision that, for a street to become publicly maintainable, the "responsible public authority" must deliberately resolve to adopt it. Nowadays, that authority will normally be the local highway authority-for example, Northamptonshire county council is the relevant highway authority for the hon. Gentleman's constituency.
In general, the responsibility for maintaining a private street will fall to the owners of the properties adjoining it-they are known as the frontagers-who would also be legally liable to meet the expenses incurred by the council in making up the street for adoption. Part 11 of the Highways Act 1980 contains what is known as the private street works code. Under the code, a street works authority can resolve to make up a private street at any time. After the works, the street is usually adopted.
The authority can apportion the expense of making up the street between the frontagers, according to the lengths of the frontage of the individual properties that abut or front the street concerned. However, the authority may also modify those apportionments if it has been resolved in advance by the authority to take account of the degree of benefit-if there is any-that individual properties derive from the works. In addition, the authority may, if it sees fit, contribute to the cost of the scheme itself. I am not sure whether that happened in any of the cases that the hon. Gentleman described. There is provision for property owners to object to their apportionments if they see fit, and in the last resort they can appeal to my right hon. and noble Friend the Secretary of State against the sum demanded. That is the extent of the Department's involvement in individual cases.
To avoid the wholesale creation of new private street works liability, the advance payments code was introduced. Under this code, to which the hon. Gentleman referred, a developer building a new property on land fronting a private street must deposit a sum equivalent to the authority's estimated private street works charge, before building starts. This amount is set against the frontager's own eventual liability for street works charges, which is discharged to the extent of that sum, along with any accrued interest. The frontager then pays any shortfall or receives a refund, as the case may be.
There is an alternative route to adoption for new streets. Under the Highways Act 1980, a developer can enter into an agreement with a highway authority for the adoption of a new estate road or, rather, a private street, when it has been completed satisfactorily. As the hon. Gentleman said, this is known as a section 38 agreement. In that case, the advance payments code does not apply and the house buyer on a new estate has the assurance that they will not be called upon to pay street works charges later on.
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