Unadopted sewers and roads

28 AUGUST 2024 09:00

When a new estate is built the developer will often enter into agreements with both the Local Authority and the local sewerage undertaker. These agreements are known as s.38 and s.104 Agreements.

Under S.38 of the Highways Act 1980, a local authority can enter into a legal agreement with a developer to adopt a highway provided the highway has been constructed to a specified standard and to the satisfaction of the local highway authority.

Similarly, a S104 Agreement (under the Water Industry Act 1991) is an agreement between a developer and a sewerage undertaker for the adoption of sewers serving a development. There are strict regulations in place for obtaining an agreement.

Often, within the Transfer from the developer to the first purchaser there will be covenants in place which means the Developer promises to make up both the roads and sewers to an adoptable standard.

While this sounds great, your solicitor is right to question whether there are any issues preventing adoption as sometimes, a Transfer does not provide for successors in title. This could be a problem as while the developer has promised to make up the roads and sewers, there is no provision to force the developer’s successors in title to do the same. This means that if the developer sells the company or becomes bankrupt you would find it difficult to force anyone to bring the roads and sewers up to an adoptable standard. You would be responsible for doing so and this could come with a significant financial outlay to yourself.

You also need to question whether the roads and sewers are currently in a good condition. For example, no-one wants to drive everyday over pothole ridden roads or suddenly find out the sewers are leaking.

Depending on the response from the developer, your solicitor may also find they will need to report the issue to the lender as it could have an impact on their willingness to lend.

 

 

 

Share this article