How to get a road adopted

The adoption status of a road could be the deciding factor when a potential home buyer is considering whether to buy a house. When a local authority adopts a road, it will maintain not only the road but also the pavement and generally, any grass verge next to the road. If a road is not adopted, the owners of houses within the development will be responsible for maintaining unadopted roads.

Under the Roads (Scotland) Act 1984 "If, on completion of a private road construction in accordance with a construction consent …. the person granted such consent applies ..to the local roads authority they shall within 12 months of the application add the road to their list of public road". On the face of it this appears simple but the fact of the matter is that there are miles of roads within Scotland which are unadopted and have been for significant periods of time.

So how do you get a road adopted and why are there so many which remain unadopted?

Consents

The first stage when building a road is to obtain the necessary consents. As construction of a new road is an engineering operation planning permission is required. In addition, a road construction consent ('RCC') is required. The two are treated very separately and obtaining one does not mean the other will be automatically granted. It is important to note that unlike a planning permission a road construction consent is personal to the applicant and if the consent is to be implemented by someone else, the roads authority must expressly consent to that.

The RCC is a technical consent. Each local authority has a set of standards for new roads which will set out the basis for any RCC application which needs to demonstrate that the road will be built to the necessary local authority standard. A typical RCC will cover layout, structure, drainage and lighting. If built in accordance with the RCC, which should meet the local authority standard, the local authority can add the road to their list of adopted roads thus taking on the responsibility and cost involved in maintaining the road.

Applying for adoption

Once the road has been constructed a developer may apply to have the road adopted. Each authority will have their own procedure but generally a written application to request the road is added to the list of public roads is submitted. This application should include all drawings to show as-built details. There is normally then a 12 month maintenance period to allow the roads authority to inspect the works to ensure they meet the necessary standards, to ensure the standard does not deteriorate over time and to enable any defects to be made good. If the standards are met, then the roads authority will recommend that the road be added to the list of adopted roads.

However, there are a number of developments where roads just haven’t been adopted with the result that homeowners have been left to maintain the road. In some cases, roads have not been constructed to the correct standard and defects are not being addressed but in many other cases the developers have done all they can and adoption rests with the local authority. These authorities are already stretched and under-resourced so they are not in any rush to take on any more responsibility and cost leaving an unsatisfactory outcome.

What can be done about this?

First and foremost, developers need to ensure that the roads are built exactly in accordance with the RCC and all relevant information is passed to the roads authority when applying for adoption. This includes, for example, any certificates in respect of lighting which has been installed to show they meet national standards.

Secondly, rather than waiting until the end of a development consider phasing. Although roads and their adjacent footways, cycle tracks and verges will not be adopted separately some roads authorities will consider adopting whole sections in a phased manner. Generally, this would be lengths between junctions or cul-de-sacs and they should form part of a continuous system. Although this may seem perhaps to be more cumbersome by getting some sections adopted you are reducing liability for homeowners and at the same time reducing the risk of deterioration in one part impacting the adoption of another section.

What about private roads?

In some circumstances, private roads can be adopted provided the road has been completed to local authority standards. Any request to be adopted must be supported by either a majority of the frontagers (owners whose house or property is adjacent to the road) or such number as together own at least half of the land immediately adjacent to the road. The roads authority will inspect the road to see if it is at the required standard and, provided it doesn’t deteriorate, will add the road to the list of adopted roads within 12 months. If works are required to bring the road up to standard the roads authority will issue a notice to the frontagers requiring them to make up the road to the required standard. The notice will set out an estimate of costs, a scheme to divide cost among frontagers and dates by which works need to have started and be completed. If works are not done the authority have the power to do the works and recover the costs from the frontagers.

Conclusion

The above is a summary of what is involved in getting a road adopted and should not be relied on specific cases. Your Brodies contact will be happy to assist with any fact specific inquiries.