The road outside a new-build home may look like any public street yet still be private, with repairs, lighting and drainage left to the residents. This article summarises the buyer-facing annex of the Department for Transport’s advice note on highways adoption, published in August 2022 and applying to England and English local highway authorities. It explains the Highways Act 1980 routes to adoption only in outline. It is general information, not legal advice, and the note itself advises buyers to take independent legal advice.
Why adoption matters to a mover
The advice note says that until roads are adopted, the developer or an appointed management company remains the streets works manager, with the legal responsibilities that carry for other users’ slips, trips and spills. It adds that the buyer of a new-build house may be liable for the access way outside the property, from the building to the property boundary, under legislation such as the Occupiers’ Liability Act 1984. It also states that not all roads are suitable for adoption, and that roads maintained at public expense are an ongoing cost to the public purse.
Buyers should not assume a road will be adopted. The note says that at the time of sale there may be no legal agreement in place that the roads and pathways will be adopted.
Roads never meant to be adopted
The note lists the usual reasons a street stays private: gated developments, a local authority view that adoption would have no wider public benefit, a number of houses below the authority’s threshold, or a decision by the developer or residents to keep it private for technical, security or legal reasons. It warns that some private streets look the same as adopted ones and that some deteriorate through lack of maintenance. Where a road is not adopted and not intended to be, the buyer and neighbours are likely to be liable for ongoing maintenance, directly or through a management company.
Liabilities may include drainage, street lighting and utilities. The note says these arise through covenants in the title or charges paid to a management company, and that charges levied by management companies may rise significantly. Reading the title documents before exchange is therefore central, as covered in the guide to exchange and completion.
Drains, bins and access
On drainage, the note says a buyer is likely to have a right to use the drains and sewer but with an obligation to maintain and repair them, at their own cost or shared with neighbours, and suggests a drainage survey. It states that sewers serving more than one dwelling for properties existing before October 2011 transferred automatically to water company control, and that the local water company should be contacted to check whether the property is affected.
Practical services need checking too. The note says some local authorities may not provide rubbish collection or street cleaning on private roads, and public transport operators may not serve private estates, which could mean carrying bins to the nearest adopted highway. Buyers should confirm they have rights of access on foot and with wheeled vehicles and find out who else has access rights or easements, such as utilities that may enter the garden without notice. Planning removal-van access is covered in the guide to parking suspensions for removal vans.
Adoption promises and protections
Where the developer intends adoption, agreements are usually made under section 38 of the Highways Act 1980. The note says a section 38 agreement gives the local authority a right to step in if the developer defaults, but the authority has no obligation to do so. It lists the most likely reasons an authority cannot adopt a road: the road is incomplete, it is not built to the required standard, or the drainage is not yet adopted by an appropriate body. Delays can be significant even where the correct agreements exist.
The note suggests that a buyer who can hold back part of the purchase money until the road is adopted could be protected, that a solicitor can secure a retention if the developer agrees, and that a quantity surveyor may be needed to advise on a sufficient amount. A property search may also reveal an outstanding notice under the Advance Payments Code, which can affect the property even if the road is to remain private.
If adoption does not happen
Where adoption is not proceeding, the note says buyers may consider seeking adoption under the Private Street Works Code, but that the costs may be substantial and the requirements detailed and specific. When a dispute arises it recommends collecting and keeping all relevant documents, maintaining a dialogue with the parties and seeking independent legal advice, and notes that for a new-build the Consumer Code for Home Builders may be relevant. It also says that a seller of a new-build on an unadopted road should consider these same matters, because terms acceptable to one buyer may not be acceptable to the next. The warranty position for a new-build is explained in the guide to Buildmark cover.
The bottom line
A new-build road in England may be adopted, planned for adoption or deliberately private, and until adoption the buyer can be liable for the access way and for shared costs through covenants or a management company. The Department for Transport advice note tells buyers to check the title, the adoption agreement, drainage arrangements and bin collection before exchange, and to consider holding back part of the price until the road is adopted. Independent legal advice on these points is recommended before committing to a move.
Sources
- Highways Adoption: the adoption of roads into the public highway (1980 Highways Act), Department for Transport advice note, August 2022 (gov.uk)