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When is a Private Street not a Private Street?

We do searches and one (the local search) tells us if a road is “adopted” or not.  Adopted means that the Council have agreed it is up to standard and will thereafter pay for the repair and maintenance out of public funds.

As an aside we find more and more that the Councils will not agree to adopt 'new build' estate roads, preferring them to remain private and thus reducing their future liability.  What happens instead is that the developer forms a company which belongs ultimately to the house owners and that company owns and repairs the road.  This works fine so long as someone ensures that the company collects funds and does its annual return and is not struck off at company house.  If it is struck off it is a nightmare; but that’s a whole different blog and as it is I have digressed.

Every now and then you get told that a road is a “Private Street” under sc 31 of the Highways Act 1980. This perversely (and this has always amused me and I have never understood the logic which, no doubt, did exist many years ago) means that the Public have rights of way over it “without hindrance by foot by horse and by vehicle”.  However the Council do not have to repair it.  So who does?

The short answer is the frontager - ie the person who’s land abuts the road.  Now most of the time Councils leave the owners alone to do as they wish but in theory they can make the owners make repairs.  It is sensible for owners to create an informal residents association and pay into a repair fund and keep the road in reasonable repair.  I suspect that it will only be a matter of time before some jobsworth decides to undertaking a health and safety risk assessment of the condition of Private Streets – doubtless someone in the EEC is drafting something as I type.  I would argue that given the potholes on the A22 most Private Streets are not a problem and people in glass houses should not throw bricks.  They just let the car in front throw up stones to chip people's windscreens. 

ere is a view that allowing a reasonable amount of disrepair is good in particular if the road links two adopted roads.  That way non owners are discouraged from using the road.  I know that this is a deliberate strategy in parts of Crowborough.  Also depending on area, private roads can be considered upmarket and increase house values.  However, too bad a state of repair may reduce the value of the property.

Also, in the worst case scenario, agree to take it over once it is up to adoptable standards.  That will be very expensive as you have to have proper drainage kerbs and a made up surface.  If you happen to be a corner plot or no one owns the frontage opposite you then the costs can be very high.  The Councils can charge either upon user frontage or proportion of use.  So if you have a long frontage you pay more.  A proportion can be good if you are at the start of the road or really bad if you are at the end.

In my long and undistinguished career (32 years and counting due to Mrs B cappuccino habit which, incidentally gets worse at this time of year due to the apparent need to visit garden centres), I have only known the adoption of 2 roads.  In the first example the developer paid for, and did the work, as part of a planning agreement.  (Its called planning gain).  The other was a link between two adopted roads and the Council agreed to pay but that was back in the days when the council had money.

There are some issues that you need to think about with Private Streets:

1                    Is it probable that it will be adopted?  If so do you want to buy?

2                    What are the arrangements and costs involved in repair?

3                    Do you need Public Liability Insurance to cover the public using the road? I would say yes but you must tell the insurer.

4                    You need to tell the lender under CML.

5                    Will it always be a Private Street?

The last is a tricky one, I suspect the answer is yes because the Council will not want to have a situation where roads can not be used by the Public.  However, under Sc 67 1 of the Natural Environment and Rural Communities Act 2006 (there’s an exciting sounding Act) then Private Streets may be questioned.

The Act stopped vehicle rights unless the exceptions in sc 67 2 applied.  This would probably save most Private Streets as use for 5 years by more Vehicles than other types of user (pedestrian horses etc) will suffice.

There are some other exclusions but most would not apply.

So clients need to be advised that unless they have a right of way over the Private Street then there is a possibility that the Private Street over which they have as a member of the Public a right of way may cease to be a Private Street and then they need a Private right of way.  Confusing I think although the problem is probably a remote one.