A bump in the road for home owners in Scotland?
Picture the scene: you’ve been living in your newly built home for six months when a pothole appears on your brand new road. You contact your council only to be told that your road isn’t on the list of public roads, so you and your lovely new neighbours are responsible for all repair and maintenance of the road and the costs that go with it.
What seems like an unusual scenario is actually more common than you think. Recent media coverage suggests that thousands of Scottish homeowners, particularly those in new build developments, are living in roads that haven’t been adopted by the council. But why is this, given that councils have been taking over the repair and maintenance of completed roads from housing developers since 1984?
Under the current regulations, the onus is on the developer to apply to the council to adopt the road on completion, but it is not an automatic process on application. The council’s power to add the road to the list of public roads is discretionary and admission is subject to the road meeting the individual authority’s required standards. If the standards are met, the road should be added within 12 months of the application. However, if it deteriorates during that time the application can be rejected and the developer, and vis-a-vis the home owners, remain liable for repair and maintenance. Given that the condition of the road, associated drainage and lighting are under scrutiny for a period of 12 months, it’s easy to see how the adoption process can be drawn out for years before the road is ever adopted. This highlights the fact that some roads have been built for over a decade but still haven’t made the list.
Why is this happening?
There are many possible explanations as to why many roads in Scotland remain unadopted. The most evident being that either the roads being constructed are sub-standard or that different councils are following different rules on what constitutes satisfactory construction.
It’s difficult to envisage that roads built by modern developers are sub-standard given the stringent controls in place. In any event, there are various consents and permissions required for a development that requires a road, including the obligation to exhibit technical drawings showing the road specification. Notwithstanding this, developers are also required to lodge a road bond with the council prior to any work commencing on a development. In theory, a road bond is supposed to provide a guarantee to the council that in the event that the road isn’t completed, the council could call up the bond and complete the works to the required standard and specification to allow it to become adopted. Whilst it is difficult to ascertain how many road bonds are called up by councils in practice, industry experience suggests that this is very rarely done. Additionally, the developer may – in addition to a road bond - also have agreed to make a maintenance payment to the council.
It has been suggested that it is a straightforward issue that councils are over-stretched both in terms of labour and budget - and are already have a huge backlog of repair and maintenance works; they simply aren’t in a position to take on more. Whatever the reason, clarification is certainly required from councils.
But where does this unsatisfactory situation leave developers and homeowners?
For developers, it is a potentially costly headache they can do without having complied - so far as they are aware - with their statutory responsibilities and the council’s construction requirements for the road.
For homeowners, there are the costs of maintaining the unadopted road, the potential impact on their ability to sell their property and on the property value itself. And this is not only a headache for new-build home owners. The flurry of new housing developments popping up in recent years and the infrastructure works necessary to maintain them have had knock on effects for established communities already living on unadopted roads.
With pressure on the Scottish Government to provide a solution to a problem faced by an estimated 10,000 Scottish homeowners, consideration will need to be given to whether there should be a more standardised approach to a council’s discretion and perhaps a system of deemed adoption.
However, it seems some real drive and a new roadmap is required in this debate or it could be a long and winding road ahead before a suitable destination is arrived at.
18th December 2020
How has the pandemic affected construction disputes?
17th November 2020
We look at the effect Covid-19 is having on the drafting and negotiation of construction contracts.
12th November 2020
Our speakers do a whirlwind round-up of recent cases.