New build: TP1 states Roads intended to be adopted. But no S38

withaspritz

Hi

I'm on a new build estate, our TP1 has the following wording:



However I couldn't find any evidence of any S38 request or bond..so I put in an FOI request with the council, they have confirmed there is no S38 agreement in place to adopt the roads

We've been in the house for coming up to two years now, and the developer is in the last few months of the development.  

Does this in fact mean it will transfer to the management company responsibility the roads on the estate? to be maintained at the expense of the homeowners via their service charge?

Section62

withaspritz said:

Hi

I'm on a new build estate, our TP1 has the following wording:



However I couldn't find any evidence of any S38 request or bond..so I put in an FOI request with the council, they have confirmed there is no S38 agreement in place to adopt the roads

We've been in the house for coming up to two years now, and the developer is in the last few months of the development.  

Does this in fact mean it will transfer to the management company responsibility the roads on the estate? to be maintained at the expense of the homeowners via their service charge?

What does "Estate Roads" mean here?  Is there a schedule or plan showing the Estate Roads (if any)?

withaspritz

Section62 said:

withaspritz said:

Hi

I'm on a new build estate, our TP1 has the following wording:



However I couldn't find any evidence of any S38 request or bond..so I put in an FOI request with the council, they have confirmed there is no S38 agreement in place to adopt the roads

We've been in the house for coming up to two years now, and the developer is in the last few months of the development.  

Does this in fact mean it will transfer to the management company responsibility the roads on the estate? to be maintained at the expense of the homeowners via their service charge?

What does "Estate Roads" mean here?  Is there a schedule or plan showing the Estate Roads (if any)?

This is a good question. The TP1 alone has this as the definition

The deed plan doesn't specifically outline the "estate roads"... I guess that means there may not be any "estate roads" for this term to bind on!  Crafty developer!

Section62

withaspritz said:

Section62 said:

What does "Estate Roads" mean here?  Is there a schedule or plan showing the Estate Roads (if any)?

This is a good question. The TP1 alone has this as the definition

The deed plan doesn't specifically outline the "estate roads"... I guess that means there may not be any "estate roads" for this term to bind on!  Crafty developer!

Yes, this is what I was wondering... if nothing is defined as an "Estate Road" the clause has no effect.

withaspritz

Section62 said:

withaspritz said:

Section62 said:

What does "Estate Roads" mean here?  Is there a schedule or plan showing the Estate Roads (if any)?

This is a good question. The TP1 alone has this as the definition

The deed plan doesn't specifically outline the "estate roads"... I guess that means there may not be any "estate roads" for this term to bind on!  Crafty developer!

Yes, this is what I was wondering... if nothing is defined as an "Estate Road" the clause has no effect.

Indeed!  Really sneaky behaviour.  The new build market really needs an overhaul.

AFF8879

Are you currently paying anything in the way of management charges that specifically itemise road maintenance? 

Maybe I’m just misinterpreting but the clause looks odd. The transferor (developer) appears to be indemnifying the transferee (you) against any costs associated with the roads until they’re adopted. Unless there’s an additional relevant clause later, that suggests that effectively the developer will be paying forever if the roads are never adopted, and will never be able to recoup that from any freeholder / management company?

withaspritz

AFF8879 said:

Are you currently paying anything in the way of management charges that specifically itemise road maintenance? 

Maybe I’m just misinterpreting but the clause looks odd. The transferor (developer) appears to be indemnifying the transferee (you) against any costs associated with the roads until they’re adopted. Unless there’s an additional relevant clause later, that suggests that effectively the developer will be paying forever if the roads are never adopted, and will never be able to recoup that from any freeholder / management company?

Not yet.  The management fee will start being charged once the estate in full is complete, due within the year I believe.

I think the issue is that the Estate Roads are not actually named anywhere besides the TP1 as roads intended to be adopted. Thus the clause doesn't actually do anything.

i.e. I'm expecting them to say something like, "Oh, well, the roads on the estate were never intended to be adopted, so they aren't Estate Roads as this document defines it"

Cash-Cows

I would be asking the solicitor what happens if agreement with the highway authority cannot be reached. 

If your house is in a small cul de sac there's a possibility that the highway authority won't adopt it. 

I think an FOI was a bit over the top, my opinion. But I would be ringing up the adoption engineer to find out what stage of adoption they are at. There's a good chance plans are in and are being considered and they may even tell you if your street is on a plan to be adopted. There are developers who get all the technical approvals but don't sign the s38 to avoid bonds needing to be paid. Once roads are constructed they then sign it. 

Section62

Cash-Cows said:

...There's a good chance plans are in and are being considered and they may even tell you if your street is on a plan to be adopted. There are developers who get all the technical approvals but don't sign the s38 to avoid bonds needing to be paid. Once roads are constructed they then sign it. 

Not if there aren't any "Estate Roads" to be adopted though.

The starting point should probably be asking the developer to confirm which (if any) are "Estate Roads" and whether there are other roads (e.g. "Retained Roads") that the developer will keep or pass on to a management company.  Although nearly two years after getting their cash they may not be very interested in giving out that information to old customers.

withaspritz

So, I went through the planning reserved matters and noted a non-numbered condition in the decision:

Prior to first development the developer will enter into and sign a Section 38 agreement under the Highways Act with regard to the formal adoption of highways within the site.

So I called up the council planning team who said it could potentially be an enforcement matter, however they suggested I double check with highways first to ensure the S38 is not under a different name or something like that.   

Waiting on a response from the council Highways team one way or the other, if not then the developer could be in breach! Interesting!