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Part 5: Adopting new roads and the advance payments code
5.1 This part deals with building new roads within development sites (please see Part 6 for works on existing roads). It covers our requirements and procedures for managing the advance payments code and for adopting a road that you construct as publicly-maintained highway.
It covers:
(Note: Please see our 'Highways Status Search' page for details of which existing roads are adopted)
5.2 You should involve both us and the planning authority in consultations at an early stage of preparing your development proposals. This applies especially if the proposed layout is not explicitly covered by the guidance in this document or is for, or contains, a Home Zone. This will provide an opportunity to resolve any potential problems about adopting your road before you submit any planning application.
5.3 We will normally encourage developers to create, whenever possible, ‘road’ layouts that are to an adoptable standard and that will be offered for adoption for:
We will consider other forms of development on a site-by-site basis.
5.4 Please see:
Notes
5.5 Under Section 219 of the Act, we have to assess the cost of the roadworks fronting new buildings on private roads and secure payment of these costs. This makes sure we can complete the new road to a satisfactory standard if you (the developer) fail to do so. It also makes sure that those who live on the road will not be liable to complete it.
5.6 Unless your proposals are exempted (see Appendix J)] we will serve you with a notice of assessment detailing the costs associated with each building.
5.7 The advance payment code applies to all private roads which are not exempted, even those intended for adoption. We monitor all sites where we have served a notice of assessment which has not been paid or bonded. If you start work on any building which has an unpaid or unbonded assessment, you will be committing an offence, and we may take you to court.
5.8 For details on how to get your advance payments code assessment refunded, please see Section ANR2.
5.9 Section 38 of the Act provides for us to take over and maintain at public expense (adopt) a road that you have constructed. The adoption process is covered by a Section 38 agreement.
5.10 Section 38(6) of the Act says: “An agreement under this section may contain such provisions as to the dedication as a highway of any road or way to which the agreement relates, the bearing of the expenses of the construction, maintenance or improvement of any highway, road, bridge or viaduct to which the agreement relates and other related matters as the authority making the agreement think fit.”
5.11 This section of the Act entitles us to seek expenses for maintenance and we intend to do this through commuted sums. This will allow us greater flexibility to adopt non-standard layouts and materials without placing undue burdens on our maintenance budget or council taxpayers. However, even if you offer a commuted sum payment, we may still resist adopting the proposed layout if we consider it to be inappropriate or unacceptable on highway-safety grounds. (Please refer to paragraph 5.72 onwards for further details on commuted sums.)
5.12 Unless your proposals are exempted (see Appendix J) we will serve you with a notice of assessment detailing the costs associated with each building. By law, you have to pay the amount set out in the notice. We can take you to court and fine you if you start your development without paying first.
5.13 You can pay the assessment amount by cheque or cash, or we will accept a bond.
5.14 Once you have paid or bonded your advanced payment code assessment, there are two ways you can have it exempted and your money refunded or your bond cancelled.
5.15 If the road is to remain private you will need to:
5.16 For a non-adoptable road the drawings you submit for approval should show:
5.17 When the road has been constructed to our satisfaction, we will serve an exemption notice under Section 219 (4e) of the Act. We will refund the advanced payment code assessment in full, with interest if appropriate, or we may cancel the bond. You should note that completing this process does not mean that the road will be of an adoptable standard, in which case it will remain private and we will not maintain it at public expense.
5.18 Before we grant any exemption of the advanced payment code assessment, we will need to be indemnified (insured) against any future petition to adopt the road under Section 37 of the Act at a later date. This should be done by including a covenant in the deeds of sale to each plot fronting the private road. Our Legal Services section will approve the wording of the proposed covenant before it is put in place.
5.19 We will charge for the work involved in checking and approving your plans, and inspecting the works on site, as follows.
5.20 For more information about the advanced payment code procedure, see Appendix J.
5.21 Before you can enter into a Section 38 agreement:
5.22 You will also need to prove a right to discharge surface water from the highway to an existing sewer, a proposed sewer or a water course. We will require proof that your drainage proposals have been approved by the relevant authorities.
5.23 You will need to give us the approved details of all necessary easements before we sign the agreement.
5.24 If the highway water discharges into sewers containing roof or yard water (or both), the relevant water company (which is either Severn Trent or Anglian in Leicestershire) must approve the proposals and they must be included in a Section 104 agreement of the Water Industry Act 1991. We will not sign a Section 38 agreement before you have received a ‘letter of intent’ from the water authority that the drainage proposals are suitable for including in a Section 104 agreement.
5.25 We will adopt only drains laid for the sole purpose of discharging surface water from the highway. However, you must also get consent from the Environment Agency or the water company for its discharge and we will require proof of this before entering into a Section 38 agreement. We must approve proposals for highway drainage, including calculations of surface water run-off. Highway drainage will then be included within the terms of the Section 38 agreement for future adoption.
5.26 You should normally design your road works in line with Part 3 and Part 4 of this document and our Specification. Our standard conditions applying to highway works for new development provides additional advice, for example on utility equipment (such as gas, water, electricity, and so on). If you have not carried out development in Leicestershire before, you should also first read Part 1 and Part 2.
5.27 You will also normally be required to submit safety audits where:
5.28 Where a layout contains features not explicitly covered by this design guidance or is for, or contains, a Home Zone you must provide a design statement for the safety auditor to support the proposed layout. The statement must cover:
5.29 Safety audits must be carried out by an accredited safety audit team that is independent from the designers.
5.30 You will be responsible for commissioning and paying for all safety audits. Please see appendix D for further information on safety audits.
5.31 Section 13 of the Leicestershire Act 1985 requires the owner of land on which a new street is to be constructed, or the person who holds the planning permission for this development, to obtain our approval as the Street Works Authority to plans, sections and other details of the level, width and specifications for the proposed street (including the sewers and drains) before any construction work is done.
5.32 Before carrying out any technical approval checks, we will require a payment of £1000 to cover our costs for any checking of the design and for preparing the Section 38 agreement in case the development does not take place. If you enter into the Section 38 agreement, we will deduct this £1000 from our administration and inspection fees.
5.33 We must approve your design consultant.
5.34 As soon as possible after stating that you want to enter into a Section 38 agreement, and before you have started to construct your road works, you must send us all the relevant information in line with the standard checklist we have given to you. When you have supplied all the information we need, we will carry out all the necessary design checks.
5.35 Where required you must satisfactorily complete the stage 1 and stage 2 safety audit processes and make all changes that we require before we will approve your proposed road works. (Please see paragraph 5.58 and paragraph 5.62 regarding stage 3 and stage 4 safety audits).
5.36 We will only issue a technical approval when:
However, the issuing of technical approval alone does not mean that you can start to construct the works. There are other matters which need to be addressed as set out in Section ANR7.
5.37 After we have granted technical approval, you must provide 13 coloured copies of the drawing to be included in the Section 38 agreement and 2 uncoloured copies of all other details. These drawings are required for completing the legal agreement, inspecting the works, providing a street-lighting scheme and for search purposes.
5.38 You must colour the drawings as follows:
5.39 We will prepare all documentation for the Section 38 agreement. Details to be provided at this time include:
5.40 Our Section 38 agreements are in a standard format. However, at times it will be necessary to include various additional clauses for ‘structures’, ‘commuted sums’ and ‘the need for individual licences for trees, benches, bins and so on within the proposed highway limits’.
5.41 We will charge you a fee for preparing the agreement. Please see Section ANR9.
5.42 Before we sign the Section 38 agreement, you must provide us with written proof that you have informed the Health and Safety Executive in writing that you are appointed client for the works for the purposes of the ‘Construction (Design and Management) Regulations’ (CDM Regulations). We will not sign the agreement until you have provided this proof.
(Note: As defined in the CDM Regulations, client means any person for whom a project is carried out, whether it is carried out by another person or is carried out in-house.” The regulations go on to state: Where the person appointed [as client for the works] makes a declaration [to the HSE that he will act as client for the works for the purposes of these regulations], from the date of the receipt of the declaration by the [HSE]), such requirements and prohibitions as are imposed by these Regulations upon a client shall apply to the person so appointed (as long as he remains as such) as if he were the only client in respect of that project.” In other words, as client for the works, you will be responsible for meeting the Regulations and making sure that the works are designed and constructed in line with the Regulation. This is not our responsibility.
5.43 We must be protected against the risk of unforeseen expenditure if you leave the road works unfinished for any reason. So we will calculate the cost of the road works, including any highway structures, highway drainage and commuted sums (where applicable) and you must provide us with an appropriate surety equal to the cost that we calculate. This may be in the form of:
5.44 For information on the fees we charge for road works covered by Section 38 agreements and on commuted sums, please see Section ANR9.
5.45 Where works are being carried out under a Section 38 agreement, you must not begin construction unless and until:
5.46 Notification of start: You must normally give us at least five weeks’ notice in writing of your intention to begin construction work or begin it again.
5.47 Approving your contractor: Your road works must be constructed by a contractor (including any subcontractor) who has relevant experience and capabilities and who must be approved by us. You must not start construction of the road works until we have approved your contractor. In Leicester City your road works must be constructed by a contractor on the Leicester City Council select list. (link)
5.48 Where we have had no previous experience of a contractor’s work you will be required to provide us with satisfactory references and also examples of similar work which they have successfully competed to the satisfaction of a highway authority. Where you are unable to do this, or where we have previously experienced problems with a contractor (for example with quality of workmanship), we will not approve that contractor.
5.49 The contractor’s insurance: You must indemnify us (protect us from legal responsibility) against any claims by third parties arising from the road works. Before we will approve your contractor they must provide us with written evidence that they have, as a minimum, £5 million public liability insurance with no limit on the number of claims.
5.50 Pre-start meeting: You must arrange a ‘pre-start’ meeting with the appropriate area office to establish and emphasise our stance on a number of issues including:
Please see our document ‘Standard Conditions Applying to Construction’ for further details on pre-start meetings.
5.51 The meeting should be attended by your representative, the designer, your contractor for the road works, the area office inspector and the development control officer.
5.52 You must comply with all aspects of the Construction (Design and Management) Regulations 1994 and indemnify us (protect us from legal responsibility) against all claims, liabilities and actions if you fail to do so. You are also required to submit full details of any traffic management proposals for the construction of the road works for approval by the appropriate area office inspector.
5.53 You are responsible for the day-to-day supervision of the road works construction. We will only inspect the works to check that they are being constructed in accordance with the approved drawings and our requirements. You must give our representative access to the works in progress at all times. If problems arise, we will be happy to discuss possible solutions with you, but it will still be your responsibility to instruct your contractor and make sure that the works are satisfactorily completed in accordance with our requirements.
5.54 Inspecting construction of the road works included in the Section 38 agreement will normally be carried out by the relevant area office staff. We will give you this information at the ‘pre-start’ meeting. You must give our representatives access to the works in progress at all times. These visits do not free you from your responsibility for supervising the work and making sure that it is carried out in a proper and safe manner, and in line with the specification.
5.55 Once you have begun work on site it is your responsibility to complete the road works to our satisfaction and to make sure the adoption takes place within a ‘reasonable’ period to minimise any potential risks or inconvenience to residents.
5.56 We impose a time limit on completing road works. Normally, the works must be completed, that is we have issued a provisional certificate, either:
whichever is soonest.
5.57 Where you do not complete the road works within the specified time limit, and we agree an extension of time, we will charge you extra fees towards our additional administrative and inspection costs. Please see paragraph 5.70 for further details. We may call on the bond or use the surety monies that you lodged with us to complete the works.
5.58 We will issue a provisional certificate of completion once:
5.59 When we issue a provisional certificate, the amount of bond can be reduced, usually to 10% of the original amount. The exception to this is where you are paying us a commuted sum in which case the bond cannot be reduced to a value less than the ‘provisional’ commuted sums that we have calculated.
5.60 You will then be responsible for maintaining the road works for a minimum period, usually twelve months. This allows any defects in the works to become apparent after they are brought into use.
5.61 Any variations to the areas originally dedicated as public highway in the Section 38 agreement must be included in a supplemental agreement at this time.
5.62 We will issue a final certificate of completion when the following actions have taken place.
5.63 After all of the above has been done to our satisfaction, we will:
5.64 We make a charge for the work involved in:
5.65 The charge for administration, design checking and site inspection is normally a fixed percentage, and currently this is normally 6%, of the estimated cost of the total road works, as calculated by us, excluding any associated structures (see below) and SUDS and ‘non-standard’ drainage systems. There is a minimum charge of £1000 for each agreement.
5.66 We will make additional charges for design checking and site inspection of highway structures based on ‘actual’ costs. (Please see Part 4, Section MC15 for further details on structures.) We will also charge additional fees, based on ‘actual’ costs, for SUDS and ‘non-standard’ drainage systems. (Please see Part 4, Section MC8 for further details on drainage).
5.67 We will also charge a separate fee of 10% of any commuted sum towards the costs of our additional administration and inspection work.
5.68 There is also an additional fixed fee for each agreement plus disbursements (money we pay on your behalf) to cover legal costs. This fee is fixed by our Legal Department and we review it every year.
5.69 We will also charge an additional fixed fee of £500 for any supplemental agreement for extra administration work.
5.70 If the road works are still not complete after the time limit specified in the agreement, we will offer you an extension of up to three-years; however we will re-assess the bond and charge you a further 3% inspection fee based on our assessment of the cost of the outstanding works, with a minimum charge of £500.
5.71 If a period of two years or more has elapsed since we issued the provisional certificate and the final certificate has not yet been issued, we will charge you a further fixed fee of £500 for additional administration and inspection work.
5.72 For some time we have normally required commuted sums to cover maintenance of such items as highway structures, noise fencing, traffic signals and ‘heritage’ street lighting where they are to be adopted as part of a publicly maintained highway,. We have now broadened this requirement to give us greater flexibility to adopt ‘innovative’ layouts and ‘non-usual’ materials without placing undue burdens either on our budgets or on Council Tax payers.
5.73 So, where in principle we are prepared to adopt them, you will normally also have to pay commuted sums on:
Note:
Where you are proposing SUDS, you must hold discussions with all relevant parties at an early stage (and certainly before you submit your planning application) to agree ownership and responsibility for the facility.
This is not an exhaustive list. There are other occasions detailed throughout this document where we require the payment of commuted sums, for example vertical traffic calming.
5.74 Part 4, Section MC18 gives more details on commuted sums and how we calculate them.
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