• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Ms X complains North Yorkshire County Council and Harrogate Borough Council have failed to take action to bring roads on her estate up to adoptable standard. We have stopped our investigation into this complaint as Ms X has not been caused an injustice by the actions of Harrogate Borough Council or North Yorkshire County Council. She and other residents would have been aware that no highways agreements were in place when the purchased their properties as well as the planning conditions attached to the development.

The complaint

1. Ms X owns a property on a new build estate. She complains the roads on the estate have not been brought up to standard and Harrogate Borough Council and North Yorkshire County Council have failed to take enforcement action against the developer.
2. Ms X says residents have had to put up with unfinished roads on the estate for the past 5 years.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I have spoken to Ms X about her complaint and considered the information she has provided to the Ombudsman.
5. I have also made enquiries of Harrogate Borough Council (HBC) and North Yorkshire County Council (NYCC) and considered their responses to my enquiries.
6. Ms X, HBC and NYCC now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Planning permission and planning enforcement

Highways adoption

7. Section 38 of the Highways Act 1980 provides that when planning consent has been granted for a new development, developers may ask the highway authority to “adopt” new roads that have been constructed as part of the development, along with associated infrastructure such as drains, lighting and supporting structures.
8. Adoption means the highway authority agrees to undertake maintenance of the road from an agreed date at the public expense. The agreement between the highway authority and the developer is called a Section 38 Agreement.
9. The highway authority in this case is NYCC.
10. Before entering into an agreement, the developer must have obtained planning permission, including approval of any reserved matters. The planning permission will generally include an indicative layout of the roads to be adopted.
11. The Section 38 Agreement may contain:
    • Details of the relevant planning permission.
    • Drawings indicating the extent of the area to be adopted.
    • Provision for land dedication.
    • Technical drawings of the works.
    • A programme for the works and for the adoption.
    • Provision for inspection and certification of the works.
    • Agreement regarding the adoption, or not, of supporting structures.
12. There may also be a requirement for a bond from the developer to cover the highway authority against the possibility that the developer fails to properly complete the works, for example if they become insolvent.
13. Section 278 of the Highways Act 1980 allows a developer to carry out works to the public highway. Agreements under section 278 are generally necessary where planning permission has been granted for a development that requires improvements to, or changes to, public highways.

What happened

14. HBC granted planning permission for a development of new residential properties in 2012. HBC attached conditions to the planning permission. These conditions included two relating to highways. The conditions said:
    • The development should not be brought into use until certain highways works had been constructed and approved by HBC.
    • No property should be occupied until parking facilities had been constructed.
15. The first property was occupied in 2015 and all properties on the estate were occupied by 2016. The roads on the estate remained unfinished during this time.
16. NYCC says it sent draft highways agreements regarding highways matters to the developer in June 2015. The agreements were not agreed and signed until April 2018.
17. HBC says it was made aware that the roads were unfinished in March 2017. It contacted the developer and said the development was in breach of planning conditions. The developer said it was in contact with NYCC as there had been technical issues preventing it from completing the work.
18. Works commenced at the end of 2020. Ms X says the developer says there are now further delays due to NYCC not supplying and fitting new street lighting.

My findings

19. NYCC and other highways authorities are not legally obliged to agree to adopt highways on new build estates. In some cases, roads on new estates will remain in private ownership with homeowners sharing responsibility for ongoing maintenance.
20. When purchasing a house, prospective purchasers may carry out local searches through their solicitors. This gives information about the status of highways and, in the case of new build properties, whether any legal agreements have been entered into regarding the adoption of the highway.
21. Ms X and other residents should have been aware that no legal agreements were in place between NYCC and the developer when local searches were carried out prior to purchasing the properties. No agreements were signed until after all the properties were occupied.
22. Local searches would also have shown that the development was subject to planning conditions relating to the condition of the highways. These conditions were imposed in 2012 before construction began.
23. Therefore, the Ms X and other residents have not been caused an injustice by any action or inaction of either NYCC or HBC. Residents took a risk in progressing with the purchase of the properties without highways agreements in place and in the knowledge that conditions imposed on the planning permission may be breached.

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Final decision

24. I have stopped my investigation. This is because the actions of HBC and NYCC have not caused Ms X and other residents an injustice.

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Investigator's decision on behalf of the Ombudsman

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