26-Mar-10 - Hertfordshire County Council

4 Conclusions
4.1 Members heard that when Local Planning Authorities (LPAs) grant
planning permission for a development that includes new roads, they
cannot impose planning conditions regarding the extent of highway
adoption or the timing of the adoption process nor do they have any
power to force a developer to put a road up for adoption. They were
also concerned to hear that there are no incentives for developers to
enter into Section 38 Agreements. As a result developers currently
initiate the process by dictating when they enter into a Section 38
adoption agreement. This agreement sets out the design and adoption
time limits. New agreements include a bond for the entire cost of
constructing the road which may be used by the Highway Authority to
bring the road up to an adoptable standard should the developer
default. Members also noted that in the current economic climate
there is a risk that fewer Section 38 adoption agreements may be
entered into because developers do not have resources to fund the
bond. Members were also made aware that the Highway Authority
may choose not to adopt a road where there are no highway benefits.
(Recommendation 2.1)
4.2 The Advance Payments Code (APC) within the Highways Act 1980
secures payment of the expenses of completing the roadworks in unadopted
roads next to new buildings. This makes sure that the street
works authority can complete the road works if the developer fails to
complete them. If work is started on a building before the appropriate
sum has been paid or secured, the owner may have to pay a fine of up
to £1000 per building. The Code was introduced to guard against the
post-war problem of small speculative developers and offers no
protection for the Highway Authority on today’s large developments
where access roads may not have houses on the road and therefore
not be covered by the Code or where there are many properties each
of which has to be dealt with separately and strict time constraints
which preclude this action.
4.3 Members were advised that the APC is not implemented by Hertfordshire
County Council and has not been for at least 30 years. Some of the districts
followed it when they had highway agency agreements as the necessary
communication between planners, building control and highways was much
easier in one organisation. Officers have recently sought legal advice on the
position regarding the Code. The County’s Legal Services teams share
highways officers’ view that this would be highly resource-intensive and give
little protection against the problems currently besetting Hertfordshire. Benchmarking
against other Highway Authorities show that those following the
Code are in the minority and are mostly single-tier authorities where the
necessary communication between planners and highway engineers is more
easily achieved. Members also noted that building control is not always
managed by local authorities, possibly resulting in HCC not being notified of
outcomes.
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