Would you like to live on an unadopted road?

BBC Radio 4 asked David Brock, a leading planning solicitor at Keystone Law, to review the benefits and difficulties of living on an unadopted road.

BBC: Now could you live on an unadopted road? Would you know? Well we are inviting you to tell us what is good about it, perhaps it appeals to the sense of individuality that we British like to think we have got. Maybe you like the feeling of running your own affairs. But for at least two residents of unadopted roads, there have been some consequences that have come as a very nasty surprise. It all began for Tony Paget when the lights went out on his street in Swansea.

TP: In order to get the lights on we had to turn to the Council and they came along to inspect the situation and we kind of hoped they would take a quick look and find some way of putting the lights back on. The only way forward they could see was to adopt the road and in order to adopt the road they would need it all to be exactly to their standard. They found a series of problems, which in brief led to a potential bill for the residents of over £17,000.

BBC: £17,000 that you would have to raise between you?

TP: Exactly. I think we are about 40 houses; it is just one street and just one part of the estate. It would have worked out, best part of about £500 per house.

BBC: So how did you feel about having to fork out for this kind of work?

TP: One of the reasons we thought it was not entirely fair was, from the day we moved in, every single household started paying full council tax and as we understood at the time, that council tax included a certain amount for things like street lights and street maintenance. So we thought we had already paid it.

BBC: Do you have any idea why it is an unadopted road?

TP: There are apparently all sorts of minor problems which have to be overcome before our street can be adopted and this is made worse by the fact that our developer, who would normally be the person pushing for adoption, went bust in 2008. In the normal run of things they would be the people pushing for adoption because it would take maintenance off their hands.

BBC: What is the situation with your street now?

TP: We have made some headway and I must admit we have had some cooperation from some of the council officers in particular. They have managed to find out who set up the street lights in the first place, a subcontractor who was still in business and so they have persuaded them to come back and bring those street lights up to the required standard, meaning most of the £17,000 has been waived.

BBC: But presumably you still need to get that sorted out, otherwise this kind of thing could happen again?

TP: The adoption process is a step in the right direction but it is still at least a year off, so in the meantime we still have to pay our own street lights. We are going to have to literally club together to pay a street light bill.

BBC: What do you think should happen having lived through this? I mean what needs to change?

TP: The whole adoption process is clearly fairly clumsy and ideally what should have happened I think, certainly in our case, is that the powers the council could have used should have been used to ask our developer to set up a bond. Then when our developer went broke that bond could have been used to put right some of the problems we have actually been trying to deal with. I understand that is not a requirement, it is an option.

BBC: Which means presumably you are not saying there needs to be legislation; you are saying you need to use the powers you have already got.

TP: I think that sums it up nicely. Yes.

BBC: This has almost perhaps brought the street together in some ways?

TP: We have had to get together to get the lobbying going and so I have spoken to neighbours I have never met before. And we are actually planning a street party should the lights come back on in the next few weeks, which we hope will be the case.

BBC: A kind of unadopted street party.

TP: Yes. It’s going to be a festival of light.

BBC: And for Jenny Norris in Northampton, the trouble started when she wanted to sell her house.

JN: We have had a bit of a rough ride of it to be perfectly honest with you. I have had three attempted sales and one of them has been successful but for two of the three sales it has been an issue related to the fact the road is unadopted.

BBC: And so what kinds of things were being said to you via Solicitors and that kind of thing?

JN: The second sale happened quite quickly. It was actually a family member was cash buying it as a buy to let property and he was advised by his Solicitors, because the road was unadopted and because there was no timescale for adoption, not to proceed with the purchase.

BBC: So what have you had to do in order to make your buyers happy?

JN: In order to guarantee the sale of my house this time we have had to take out an indemnity policy and have a £1,000 retention.

BBC: And can you just explain what that policy does and what obligations that places on you?

JN: Basically we have had to pay £210 for this policy which basically covers the mortgage lender for the liability of any legal costs associated with road adoption.

BBC: And that did the trick?

JN: It shut them up, yes.

BBC: So what do you feel about this and the fact that we have these kinds of unadopted roads that seem to be laws unto themselves?

JN: To be perfectly honest with you it has left a very bitter taste in my mouth that we have had to pay out an extra £1,200 to guarantee the sale of a house that is on a perfectly good road. It has tainted my opinion so much that in the future, if I ever decide to move I won’t be looking at the houses on unadopted roads.

BBC: So that will be the first question you ask?

JN: Absolutely.

BBC: Have you thought about what maybe could be done about this because it does seem that quite a few people find themselves in this position?

JN: I think to be perfectly honest it needs to be more open with what you are actually liable for because even now I am still not 100% certain exactly what I would have been liable for had there been an issue on my road. I don’t know if that’s something the estate agents can do or the Solicitors when you buy the property, I don’t know. But something needs to be made clearer.

BBC: So apparently far from being a charming anachronism or a topic of dinner party conversation, the unadopted road can pose a number of problems. David Brock is a Planning Lawyer with Keystone Law and I asked him the status of these roads.

DB: An unadopted road is just what it says, it has not been adopted which means that the Local Highway Authority has not agreed to adopt it as maintainable at the public expense. So they are maintainable privately.

BBC: And why might that have happened?

DB: Lots of reasons really, there are actually quite a lot of unadopted highways and roads around the country. If you think of public footpaths or bridleways when you go out for a walk, a lot of those are highways and of course, they are not adopted or maintainable at all. They are nice and muddy at this time of the year. But also when you have a new housing development, the roads are newly built and they are not yet adopted. And in some cases there is simply a road through a village and for some reason over the years it just has not been adopted because it is a formal process.

BBC: So it can be accidental or it can just be that the council isn’t happy about something and therefore has not adopted it?

DB: The Council does not have to adopt the thing unless it agrees to in the case of a new road.

BBC: So what does the law in England and Wales really say about the obligations of the people who live on them?

DB: Where you have got an unadopted road, if it is a highway the liability for it is with the people who live on either side of it. Generally speaking the law is not particularly specific about what is to be done. It will be an individual case.

BBC: It almost sounds as if councils can just wash their hands of looking after roads. I mean, you might as well argue that people who live on them should pay for their own policing or their medical services or something like that.

DB: Well historically, if you go back to the 17^th and 18^th centuries you had lots of highways and byways up and down the land and some of them got taken over and run by Turnpike trusts. And over the years the Magistrates became responsible for looking after it and the Local Government came to take over some types of roads. Generally speaking highways in this country and big roads like the motorways and the A roads are looked after by the Highway Authority. But smaller ones which, and they are usually ones which will serve just residential developments, would only ever get taken over by the agreement of the Local Highway Authority.

BBC: So are there any advantages to living on an unadopted road?

DB: They tend to be quiet and I suppose in theory you might say you have some control over the level of maintenance.

BBC: But you have to pay for it.

DB: But you have to pay for it. Often it is a nuisance if you share the road because there is the problem of getting everybody to contribute a fair share.

BBC: It sounds as if they are a trap for the unwary. I mean I take it you do think that really you need to take the fact that you are on an unadopted road quite seriously when you buy a house and go to live there.

DB: When you are buying a house there are all sorts of things to check and one of them is whether that highway is one which is looked after at the public expense or one that you are going to have to fork out for yourself.

BBC: David Brock and as I rather suspected there has been quite a strong reaction to this, none of it favourable about unadopted roads so far. Julie Elliott says “I am a residential director on an unadopted estate in the centre of Portsmouth. I cannot think of anything good. We all pay a fee to maintain the estate and struggle to get the management company to carry out our requests. We have problems with hospital workers/patients/visitors parking on the estate causing obstruction. Portsmouth City Council take full council tax but get off lightly as they don’t have to resurface the road, provide line markings, light the road, etc”. And Ken Davis said “I live on a private road and have suffered years of threats and legal actions because of my attempts to establish the proper legal position with regards to public access. There are related issues about demands for maintenance payments and rights of way payments being used in effect to blackmail people”. Does anybody want to tell me what is good about living on an unadopted road?