Council Owned Road Pothole Problem
Discussion
My local council owns an un-adopted road leading into the industrial estate where I work. Land registry titles and plans shows the road as owned solely by the council and deeds for the buildings with frontage to the road stop before the road and make no reference in the title docs.
They’re now stating that they have no budget available to repair the road, which is close to becoming undrivable.
I’ve raised it through their online reporting, through FixMyStreet, through Facebook, as an "official complaint" and even had it reported in the local paper (beats the "Cat Up Tree" headlines
). The newspaper article quotes a council employee saying that the repairs will need to be paid for by the businesses on the estate. I can’t see this being accepted by the majority of the businesses so we’re going to reach a bit of an impasse.
What can I do to persuade the council to stop reneging on their responsibilities and repair the road?
They’re now stating that they have no budget available to repair the road, which is close to becoming undrivable.
I’ve raised it through their online reporting, through FixMyStreet, through Facebook, as an "official complaint" and even had it reported in the local paper (beats the "Cat Up Tree" headlines
). The newspaper article quotes a council employee saying that the repairs will need to be paid for by the businesses on the estate. I can’t see this being accepted by the majority of the businesses so we’re going to reach a bit of an impasse.What can I do to persuade the council to stop reneging on their responsibilities and repair the road?
Edited by Burrito on Thursday 7th January 11:20
It will all come down to the legalities of it. It is odd it is not adopted, firstly was there a Section 38 with the estate developer? If not how do you have access over the land? If there is a right of access in your deeds over the road there will likely be a maintenance undertaking which I woudl expect to fall to the users of the road ie the Industrial estate.
Sorry to say it is not easily there obligation if it is not adopted. The only route you have is under the street works act which if it is deemed a public highway they can be forced to maintain (this is easier said than done)
I'm a developer and there is no way I could sell an industrial unit without a proper right of access, therefore that needs to be understood, either a S38 is in place which can be forced through to adopt the road with a bond to get it made up or it is merely a right of access and it is likely you are jointly responsible in which case the council will tell you to foxtrot oscar!
Hope that helps..
Sorry to say it is not easily there obligation if it is not adopted. The only route you have is under the street works act which if it is deemed a public highway they can be forced to maintain (this is easier said than done)
I'm a developer and there is no way I could sell an industrial unit without a proper right of access, therefore that needs to be understood, either a S38 is in place which can be forced through to adopt the road with a bond to get it made up or it is merely a right of access and it is likely you are jointly responsible in which case the council will tell you to foxtrot oscar!
Hope that helps..
Burrito said:
My local council owns an un-adopted road leading into the industrial estate where I work.
The newspaper article quotes a council employee saying that the repairs will need to be paid for by the businesses on the estate. I can’t see this being accepted by the majority of the businesses so we’re going to reach a bit of an impasse.
I wonder if, when the industrial estate was developed, there was a clause in the paperwork that put the maintenance onus onto the estate developers? If they've gone south since, or have transferred management to somebody else, we have the makings of an answer...The newspaper article quotes a council employee saying that the repairs will need to be paid for by the businesses on the estate. I can’t see this being accepted by the majority of the businesses so we’re going to reach a bit of an impasse.
My suspicion is that this may be an estate road. If so it's not unheard of for maintenance of the estate to be recoverable via a service charge.
Ladies and gentleman of PH, it's time of that bit of advice again, the ones that causes pain and fear to OP's. It's time to read the lease....
If there is provision for a service / estate charge that's where it will be.
I'm struggling to understand why otherwise the LA would own it without it being adopted.
Ladies and gentleman of PH, it's time of that bit of advice again, the ones that causes pain and fear to OP's. It's time to read the lease....
If there is provision for a service / estate charge that's where it will be.
I'm struggling to understand why otherwise the LA would own it without it being adopted.
surveyor said:
My suspicion is that this may be an estate road. If so it's not unheard of for maintenance of the estate to be recoverable via a service charge.
Ladies and gentleman of PH, it's time of that bit of advice again, the ones that causes pain and fear to OP's. It's time to read the lease....
If there is provision for a service / estate charge that's where it will be.
I'm struggling to understand why otherwise the LA would own it without it being adopted.
The section of road in front of our business is adopted highway, so our lease won't be relevant, but the road's title deeds and plan make it clear that the road is owned by the council, which they accept. They just say there's no budget for repairs and expect the businesses along the road to pay. Ladies and gentleman of PH, it's time of that bit of advice again, the ones that causes pain and fear to OP's. It's time to read the lease....
If there is provision for a service / estate charge that's where it will be.
I'm struggling to understand why otherwise the LA would own it without it being adopted.
The estate was originally English Estates, although the larger buildings along the road appear to individually owned, with the smaller buildings now owned by John Lewis Pensions, who have just spent the last 6 months tidying up all the buildings and resurfacing their area of responsibility (which was no where near the state of the access road).
Title plan.
Please clearly say which is your building and it is HIGHLY unlikely to have a bit of adopted highway unconnected to other highway this would imply there was once a Section 38... which was over the council land. If there was then the council have an obligation to enforce against the developer to get the road adopted, if the developer is no longer in existence there should be a bond or cash deposit to pay for the works...or the council do!
This comes back to your access rights over the lane. Your solicitor when the building was purchased should not of let you buy without access either S38 or estate road with covenants tot he tenants to maintain... This info is needed or the question cannot be answered.
This comes back to your access rights over the lane. Your solicitor when the building was purchased should not of let you buy without access either S38 or estate road with covenants tot he tenants to maintain... This info is needed or the question cannot be answered.
With unadopted roads the land owner does not necessarily have any legal obligation to maintain the road.
It is not uncommon for the maintenance of the road to be the responsibility of the property owners - usually each building owner is responsible for the section adjacent to their frontage, and to the centre line of the road (may be different for commercial properties). Building owners should check their legal paperwork for the property as it will usually detail if they are responsible for maintenance. You don't need to have ownership of the road to be responsible for its upkeep.
I have the same issue - live on an unadopted road, but have an obligation (both legally and from a point of view of access and maintaining property value) to maintain the road.
It is not uncommon for the maintenance of the road to be the responsibility of the property owners - usually each building owner is responsible for the section adjacent to their frontage, and to the centre line of the road (may be different for commercial properties). Building owners should check their legal paperwork for the property as it will usually detail if they are responsible for maintenance. You don't need to have ownership of the road to be responsible for its upkeep.
I have the same issue - live on an unadopted road, but have an obligation (both legally and from a point of view of access and maintaining property value) to maintain the road.
Fish said:
Please clearly say which is your building and it is HIGHLY unlikely to have a bit of adopted highway unconnected to other highway this would imply there was once a Section 38... which was over the council land. If there was then the council have an obligation to enforce against the developer to get the road adopted, if the developer is no longer in existence there should be a bond or cash deposit to pay for the works...or the council do!
This comes back to your access rights over the lane. Your solicitor when the building was purchased should not of let you buy without access either S38 or estate road with covenants tot he tenants to maintain... This info is needed or the question cannot be answered.
I'm going on hearsay for the adopted highway, which is the horizontal of the T of the main road. The vertical being the area needing maintenance. This comes back to your access rights over the lane. Your solicitor when the building was purchased should not of let you buy without access either S38 or estate road with covenants tot he tenants to maintain... This info is needed or the question cannot be answered.
The council have accepted they should be maintaining the road, they're just refusing.
Email from a few days implying they will repair the road but now saying the repairs will be at the expense of the businesses.
Council said:
The Council is aware of this issue and has previously advised that the ultimate adoption of this former District Council Estate Infrastructure is in the process of being reviewed by Cornwall Council, an initial survey has now been completed which has identified all the current defects within the carriage and footway construction, plus the associated drainage systems – this is now being scoped for design and tender purposes, with estimates being prepared which will ultimately be subject to budget approval. This whole process will take several months to complete during which time the estate road condition will be monitored and temporary repairs undertaken as absolutely necessary.
Edited by Burrito on Wednesday 6th January 21:59
If the council owns the road then it may be vested with them as land owner, not highway authority. This in itself isn't unusual. Neither's the situation the OP is in TBH.
A S38 may not be in place for a number of reasons;
If the LA built the road then there can't be a S38 agreement as that would require the council to enter into a legal agreement with itself.
If the LA as property owner built the road then that doesn't mean the Highway Authority will take it on once it's built. In the first instance, it has to built to a satisfactory standard, secondly the HA would be reluctant to adopt less the estate was fully developed.
If the road was built by a Developer the you have to to question whether there is an agreement in place. The LA cannot force a developer to enter into a S38 agreement. But if they won't then there is the Advance Payment Code Notices;
http://www.gloucestershire.gov.uk/extra/article/10...
But the system is flawed in that the HA needs to keep an eye on the development so that they serve the APC's and it's difficult / time consuming to enforce.
Christ, getting developers to enter into S38 agreements is difficult enough!
Even if a S38 agreement has been entered into it's often the case that the bond money isn't sufficient to cover the cost of the repair works.
With the Government's spending cuts you can guarantee that the LA won't have sufficient funds to repair the road. They will have more pressing uses for the money.
If the OP is that grieved by the state of the road then why not approach the LA as a collective development and offer to bring it up to a standard suitable for adoption.
That may sound drastic but I would suggest you contact then and find out what work is required to bring it up to an adoptable standard. It may involve less work / expense than you think.
A S38 may not be in place for a number of reasons;
If the LA built the road then there can't be a S38 agreement as that would require the council to enter into a legal agreement with itself.
If the LA as property owner built the road then that doesn't mean the Highway Authority will take it on once it's built. In the first instance, it has to built to a satisfactory standard, secondly the HA would be reluctant to adopt less the estate was fully developed.
If the road was built by a Developer the you have to to question whether there is an agreement in place. The LA cannot force a developer to enter into a S38 agreement. But if they won't then there is the Advance Payment Code Notices;
http://www.gloucestershire.gov.uk/extra/article/10...
But the system is flawed in that the HA needs to keep an eye on the development so that they serve the APC's and it's difficult / time consuming to enforce.
Christ, getting developers to enter into S38 agreements is difficult enough!
Even if a S38 agreement has been entered into it's often the case that the bond money isn't sufficient to cover the cost of the repair works.
With the Government's spending cuts you can guarantee that the LA won't have sufficient funds to repair the road. They will have more pressing uses for the money.
If the OP is that grieved by the state of the road then why not approach the LA as a collective development and offer to bring it up to a standard suitable for adoption.
That may sound drastic but I would suggest you contact then and find out what work is required to bring it up to an adoptable standard. It may involve less work / expense than you think.
Edited by Zombie on Wednesday 6th January 22:49
Burrito said:
I'm going on hearsay for the adopted highway, which is the horizontal of the T of the main road. The vertical being the area needing maintenance.
The council have accepted they should be maintaining the road, they're just refusing.
Email from a few days implying they will repair the road but now saying the repairs will be at the expense of the businesses.
Where are they refusing exactly?The council have accepted they should be maintaining the road, they're just refusing.
Email from a few days implying they will repair the road but now saying the repairs will be at the expense of the businesses.
Council said:
The Council is aware of this issue and has previously advised that the ultimate adoption of this former District Council Estate Infrastructure is in the process of being reviewed by Cornwall Council, an initial survey has now been completed which has identified all the current defects within the carriage and footway construction, plus the associated drainage systems – this is now being scoped for design and tender purposes, with estimates being prepared which will ultimately be subject to budget approval. This whole process will take several months to complete during which time the estate road condition will be monitored and temporary repairs undertaken as absolutely necessary.
Edited by Burrito on Wednesday 6th January 21:59
Zombie said:
If the council owns the road then it may be vested with them as land owner, not highway authority. This in itself isn't unusual. Neither's the situation the OP is in TBH.
A S38 may not be in place for a number of reasons;
If the LA built the road then there can't be a S38 agreement as that would require the council to enter into a legal agreement with itself.
If the LA as property owner built the road then that doesn't mean the Highway Authority will take it on once it's built. In the first instance, it has to built to a satisfactory standard, secondly the HA would be reluctant to adopt less the estate was fully developed.
If the road was built by a Developer the you have to to question whether there is an agreement in place. The LA cannot force a developer to enter into a S38 agreement. But if they won't then there is the Advance Payment Code Notices;
http://www.gloucestershire.gov.uk/extra/article/10...
But the system is flawed in that the HA needs to keep an eye on the development so that they serve the APC's and it's difficult / time consuming to enforce.
Christ, getting developers to enter into S38 agreements is difficult enough!
Even if a S38 agreement has been entered into it's often the case that the bond money isn't sufficient to cover the cost of the repair works.
With the Government's spending cuts you can guarantee that the LA won't have sufficient funds to repair the road. They will have more pressing uses for the money.
If the OP is that grieved by the state of the road then why not approach the LA as a collective development and offer to bring it up to a standard suitable for adoption.
That may sound drastic but I would suggest you contact then and find out what work is required to bring it up to an adoptable standard. It may involve less work / expense than you think.
That about covers it.. I would question on what basis a freeholder was advised they have a right of access as no solicitor should allow them to purchase unless they had a correct right of access..either adopted(no), under S38 (???) or proper right of access in deeds(this would likely suggest maintenance obligations)A S38 may not be in place for a number of reasons;
If the LA built the road then there can't be a S38 agreement as that would require the council to enter into a legal agreement with itself.
If the LA as property owner built the road then that doesn't mean the Highway Authority will take it on once it's built. In the first instance, it has to built to a satisfactory standard, secondly the HA would be reluctant to adopt less the estate was fully developed.
If the road was built by a Developer the you have to to question whether there is an agreement in place. The LA cannot force a developer to enter into a S38 agreement. But if they won't then there is the Advance Payment Code Notices;
http://www.gloucestershire.gov.uk/extra/article/10...
But the system is flawed in that the HA needs to keep an eye on the development so that they serve the APC's and it's difficult / time consuming to enforce.
Christ, getting developers to enter into S38 agreements is difficult enough!
Even if a S38 agreement has been entered into it's often the case that the bond money isn't sufficient to cover the cost of the repair works.
With the Government's spending cuts you can guarantee that the LA won't have sufficient funds to repair the road. They will have more pressing uses for the money.
If the OP is that grieved by the state of the road then why not approach the LA as a collective development and offer to bring it up to a standard suitable for adoption.
That may sound drastic but I would suggest you contact then and find out what work is required to bring it up to an adoptable standard. It may involve less work / expense than you think.
Edited by Zombie on Wednesday 6th January 22:49
S220 advance payments codes is unlikely to have been taken as it's only in the last few years it has started certainly up here to be applied and even then it is calculated on a frontage basis.
You can check the hammer heads adoption or not by checking records..
The only things are can't remember are what obligations the highway agency are under with regard to the Streetworks Act as this can force them to carry out repairs. I know when we get roads exempted from S220 advance payments codes and hence not get them adopted under S219 we have to prove the authority will not have to carry out street repairs under the Streetworks act and thus we have to prove we have built it properly..
Thanks both, appreciate your input. I’m intending to speak to someone at the council today.
I'm waiting to hear on the terms of the lease as to whether there’s any provision for a service or estate charge. Although it seems moot when the council have accepted it's their responsibility.
Extract of the title deeds of the road indicates there's rights of way over the road.
C: Charges Register
This register contains any charges and other matters that affect the land.
1 (29.11.2007) The land is subject to such rights of drainage, rights in respect of water, gas, electricity and other supply services, rights of entry, rights of way over roads and footpaths and other rights, easements or quasi-easements as are granted by Transfers of land on the Treloggan Industrial Estate.
2 (29.11.2007) A Wayleave Agreement dated 19 September 1979 made between (1) Restormel Borough Council and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
3 (29.11.2007) A Wayleave Agreement dated 27 October 1986 made between (1) Borough of Restormel and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
4 (29.11.2007) A Wayleave Agreement dated 22 June 1989 made between (1) Restormel Borough Council and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
5 (29.11.2007) The parts of the land affected thereby are subject to the leases set out in the schedule of leases hereto.
The leases grant and reserve easements as therein mentioned.
Schedule of notices of leases
1 02.09.2008 Electricity sub-station site 21.12.1973 CL243736
edged blue site 99 years from 29/09/1973
I'm waiting to hear on the terms of the lease as to whether there’s any provision for a service or estate charge. Although it seems moot when the council have accepted it's their responsibility.
Extract of the title deeds of the road indicates there's rights of way over the road.
C: Charges Register
This register contains any charges and other matters that affect the land.
1 (29.11.2007) The land is subject to such rights of drainage, rights in respect of water, gas, electricity and other supply services, rights of entry, rights of way over roads and footpaths and other rights, easements or quasi-easements as are granted by Transfers of land on the Treloggan Industrial Estate.
2 (29.11.2007) A Wayleave Agreement dated 19 September 1979 made between (1) Restormel Borough Council and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
3 (29.11.2007) A Wayleave Agreement dated 27 October 1986 made between (1) Borough of Restormel and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
4 (29.11.2007) A Wayleave Agreement dated 22 June 1989 made between (1) Restormel Borough Council and (2) South Western Electricity Board relates to the laying user and maintenance of underground electricity lines.
5 (29.11.2007) The parts of the land affected thereby are subject to the leases set out in the schedule of leases hereto.
The leases grant and reserve easements as therein mentioned.
Schedule of notices of leases
1 02.09.2008 Electricity sub-station site 21.12.1973 CL243736
edged blue site 99 years from 29/09/1973
General Fluff said:
It is moot so what are you banging on about? You appear to be trying to prove they have responsibility when they've already admitted they do. Aren't you approaching this from entirely the wrong angle?
Back to my original question: What can I do to persuade the council to stop reneging on their responsibilities and repair the road?Burrito said:
Back to my original question: What can I do to persuade the council to stop reneging on their responsibilities and repair the road?
And back to what several other people have said... IS it the council's responsibility? Just because they own the land doesn't mean it is. English Estates, or whoever, may well have a contractual obligation that they're not living up to. And if that is the case then, no, the council don't have the budget to repair bits of road they don't have to repair just because whoever should be repairing it isn't.If the state of the road is costing you money then you could start banging in claims for compensation. That may move it up their list of spending priorities. If it's just an inconvenience then you can continue to complain but realise that budgets are stretched and not every hole will be filled and lamp post painted.
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