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Agreements & Miscellaneous Definitions Click
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The overseeing Highway Authority for the United Kingdom is the Department of Transport. Local and County Councils act on behalf of the DTp as Agent - As a general guide Borough and District Councils do not act as Agent to the DTp but Metropolitan and County Councils do. There may be variances to this guide.
Section 38 - Highways Act 1980, Adoption of New Highways
Section 38 relates specifically to the creation of new highways upon land in the ownership of anyone other than the highway authority. It is an agreement between the land owner and the authority for the construction of new highway and the ultimate adoption by the authority as a public highway. The agreement secures a bond for the cost of the works, to enable completion of the works by the authority upon default by the developer, usually for reasons of insolvency but occasionally in instances where the developer has failed to complete the works within a specified or 'reasonable' period of time. The agreement also identifies fees payable for supervision by the adopting authority.
Any developer or his consultants must enter into a process of submitting detailed design proposals to the authority for approval prior to construction works and, sometimes, the agreement will not be entered into until the highway authority has been satisfied that all of its criteria can be met.
All highways must be drained to the satisfaction of the authority. Where the highway drains via new sewers, to be adopted as public sewers, the S.38 agreement will not usually be entered into until the authority is satisfied that the developer is entering to a sewer adoption agreement. Upon completion of the works the developer must seek the agreement of the authority to place the new highway 'on maintenance'. This is a period of 12 months at the end of which any defects are to be remedied prior to formal 'hand-over' to the authority as a public highway.
Section 278 - Highways Act 1980, Works Within The Highway
Section 278 covers proposed highway works within the existing highway (modification of highways not general excavation for different reasons). This would generally encompass works such as new traffic islands, roundabouts, junction improvements, carriageway alignment etc. and is often accompanied by a Section 38 Agreement for works outside the highway. The basic difference between this agreement and a S.38 agreement is that the developer is effectively working as a contractor to the Highway Authority and is carrying out the works on their behalf. Similar to the S.38 agreement the developer must put up a bond to cover the cost of the works (as the proposed works are solely to the benefit or consequence of his development) and will be required to pay supervision fees.
Drainage Authority (Water Authority)
Can sometime be a confusing label. Generally the local authority is considered to be the Drainage Authority. Local Authorities do have powers over foul and surface water drainage matters but the Water Companies should be regarded as the 'authority' in connection with proposed development, public and adoptable sewers.
The local authorities generally have responsibilities relating to land drainage but it should not be forgotten that the Environment Agency has a role to play in drainage relating to capacities, water quality and environmental impact.
Drainage Company (Water Companies)
The water companies, Severn Trent, Thames, North West, Anglian etc. are responsible for public foul and surface water drainage aswell as water supply. With regard to drainage matters (adoptable sewers, capacities etc) the Water companies are responsible but some use local authorities as Agents to administer their responsibilities in this respect.
Section 40 - Water Industry Act 1990
The is a section of the Water Industry Act whereby the Water Authority is able to provide infrastructure sewers that will cater for large areas of development or redevelopment at its own expense for later recovery of proportional costs from land owners / developers. This section of the act will not be applied to a single large landholding that is to be subdivided for sale and subsequent development - this would be the owner / developer responsibility - but would be applied to large areas of multiple ownerships whereby a collective agreement would not be reasonable or sensible or previous attempts to secure such an agreement have failed.
Section 104 - Water Industry Act 1990, Sewer Adoption
Section 104 relates to the construction of new sewers by a developer, to be offered for adoption be the Water Authority as public sewers. The agreement secures a bond for the cost of the works, to enable completion of the works by the authority upon default by the developer, usually for reasons of insolvency but occasionally in instances where the developer has failed to complete the works within a specified or 'reasonable' period of time. The agreement also identifies fees payable for supervision by the adopting authority.
Upon completion of the works the developer must seek the agreement of the authority to place the new sewers 'on maintenance'. This is a period of 12 months at the end of which any defects are to be remedied prior to formal 'hand-over' to the authority as public sewers.
Section 98 - 101 - Water Industry Act 1990, Sewer Requisition
Where a developers only option to drain a site, with proposed adoptable sewers, is via land owned or controlled by another party his first duty is to seek agreement with that land owner to cross his site. If negotiations can be shown to have broken down and the developer is able to demonstrate that the chosen route is the only alternative the Water Authority is able to exercise its powers under the above act to requisition the sewer route. The process requires negotiation by the authority but and, in the event objections by the land owner, can be time consuming. The standard timescale, from making the application, is six months - smaller schemes can be complete within three to four months - but larger schemes involving multiple ownerships can sometimes take much longer.
Any developer will view the requisition process as an apparantly expensive process compared to his own contractors sewer works. This is inevitable as figures will include WA officers time, legal fees, compensation etc.
The WA will offset part of the cost of the sewer works with a sum calculated from 12 years revenue from the sewerage element of the water rates from properties. The highway drainage proportional element of costs is extracted from this equation but, in essence, a large development with a small requisition sewer can sometimes result in costs being lower than the most economic construction costs.
The overseeing planning authority for the United Kingdom is the Department of the Environment. Each Local Authority from District up to County level has differing planning roles to play as Agents to the DoE.
Planning applications are made to the Local Planning Authority who will refer to both law & policy created at Local, County & National level.
Any applicant dissatisfied with the Local or County process may make an appeal to the Secretary of State for the Department of the Environment.
Section 106 - Pre-planning Agreement