Legislation allows councils to make good any damage caused by works on land adjacent to publically maintained highways, and recover the expenses incurred. Boroughs have highlighted that in practice this can be difficult to achieve.
London Councils’ Transport and Environment Committee has discussed this issue, and this webpage is intended to bring together information and examples of where London boroughs are tackling the problem.
What does the law say?
There are a series of existing legislative powers that boroughs can use.
The Highways Act 1980
Section 133, amended by Section 6 of the London Local Authorities and Transport for London Act 2013, allows councils to make good any damage caused by works on land adjacent to a publicly maintainable footpath or highway and recover the expenses incurred from the landowner, the person carrying out the works or the person on whose behalf the works were carried out. In practice, an authority needs to know that work is being carried out, what state the highway was in before the work was undertaken and be able to prove that any damage was related to the work. It needs to be prepared to pursue legal proceedings to apply the legislation to recover the cost of repairing the damage done.
The Highways Act also gives local authorities the power to control the use of temporary structures, such as scaffolding (section 169) and builders’ skips (section 139). A licence for a temporary structure may contain such terms as the authority issuing it thinks fit, which the applicant has the right to contest in a magistrate’s court on the grounds of unreasonableness. Some authorities are using this to secure deposits to cover potential damage to the highway when granting licences.
Section 278 of the Highways Act allows developers to enter into legal agreements to improve or alter the highway to support a proposed development. There are similarities between these agreements and Section 106 agreements (see below). Such an agreement can allow for ‘payments in respect of the maintenance of the works to which the agreement relates and may contain such incidental and consequential provisions as appear to the highway authority to be necessary or expedient for the purposes of the agreement’. There are means of enforcement set out in the legislation, which include preventing means of access to the site covered by the agreement.
‘Section 106’ (the Town and Country Planning Act 1990)
Section 106 of the Town and Country Planning Act 1990 (as amended) allows a legal agreement placing restrictions or requirements on the use of land to be part of the planning permission. These are known as ‘planning obligations’ and are most commonly used to secure affordable housing or new infrastructure, but can be used for other purposes. The agreement can be enforced through an injunction.
Planning conditions (the Town and Country Planning Act 1990)
Planning conditions can be used to mitigate the adverse effects of development. Where a development is undertaken in a way that is inconsistent with the planning condition, local authorities can take planning enforcement action, such as issuing Stop Notices and requirements to rectify the issue. Planning conditions cannot be used to require payments to the local authority and must relate specifically to the site covered by the permission.
Potential solutions
Planning conditions could help limit damage, for example requiring Construction Traffic Management Plans
Case study: Kensington and Chelsea
Demolition, excavation and construction traffic generated by new development can impact on parking availability, traffic flow, road safety, amenity for local residents and can cause pedestrians inconvenience. Any development that has the potential to cause disruption may be required as a condition of getting planning permission to produce and submit to the council a Construction Traffic Management Plan. The borough has developed a pro-forma to aid developers in submitting the information the council needs to approve or amend the Plan.
Even where lorries will not cross the pavement the borough requires a “temporary crossover” to protect against instances where damage has occurred when lorries have part-mounted the pavement. This licence is applied for in the same way as a hoarding or scaffolding licence is applied for, and details of the protection of the pavement is requested in Construction Traffic Management Plans. Whilst no administration fee is charged for a temporary crossover, a deposit is required by the borough in case of any damage.
In one case of a basement extension and alterations to the existing house a temporary crossover licence was required to protect the pavement when receiving deliveries. Although no lorries were planned to drive into the site and therefore cross the pavement, the council required a licence due to instances where a lorry mounts the pavement whilst parking or rests stabiliser jacks on the pavement, causing damage. To avoid this happening and raise awareness of the issue the council requires developers to gain a licence. Detail about how the pavement will be protected is a specific part of the Construction Traffic Management Plan, which has to be approved by the borough before work can start. In this case damage to the pavement was caused by the hydraulic feet of the grabber lorries when they arrived on site. The borough had photographic evidence of the damage and the cause, and the developer acknowledged they had caused the damage and paid for the repairs.
Highways authorities could require deposits to be paid to cover potential damage where authorities issue licences for temporary structures, plant and materials on the highway
Case study: Lewisham
When the London Borough of Lewisham receives a request for a scaffolding or hoarding licence, and on some occasions when skip licences are requested, the highways team visit the site and photograph the public highways and pavements, and request a deposit or surety that would cover the costs of damage to the public highway or street furniture if damage caused by the works. Bigger projects have site meetings. The deposit may be anything from £300 to £20,000 depending on the site and the works taking place.
The site is monitored and if damage occurs photos are taken. The Project Manager or Building Manager is contacted to discuss the damage, advise them of the costs, and get authorisation to take the money from the deposit or surety. In some cases the company prefers to pay for the damage and leave the deposit untouched.
If no damage occurs the deposit or surety is refunded in full. Lewisham has been operating this process since at least 2011, and find that requesting a deposit lowers the risk of damage. They acknowledge that it can be difficult to reclaim monies from skip or delivery companies as they can claim that didn’t illegally cross the footway, that the footway was previously damaged, or that they didn’t deliver that day; even with photographic evidence.
An inspection and administration fee of £60 is charged to cover overheads of inspecting the highway.
Case study: Croydon
The London Borough of Croydon has taken payment of a bond for hoarding, scaffolding and crane licences for over 10 years. A licence is applied for and purchased online, and the application is then sent to the Neighbourhood Safety Team who arrange a site visit to authorise the work to be carried out and advise on any safety concerns relating to the highway. A licence is then produced and sent to the builder/company for display on the site. The bond payment is £50 per square metre of public highway enclosed by the hoarding/scaffolding/crane.
Officers feel it raises awareness about damaging the site. When necessary, the enforcement team will prosecute. The resources required are highways inspectors and network management staff, for who highways damage is a small part of their role. Highways maintenance technical support officers do not work directly on highways damage issues but do pass on intelligence to inspectors or enforcement teams to investigate.
They acknowledge the challenges can be gathering enough evidence, and workers feigning not understanding the problem, occasionally being aggressive, or there being no-one on site to discuss the issue with. Greater public involvement in reporting the issue or gathering evidence may help, given the costs of the damage which are paid from public money.
Case study: Kensington and Chelsea
The Royal Borough of Kensington and Chelsea has been requiring deposits as part of its application process for licences for structures or storage of materials/machinery on the highway for over two decades. Applicants for licences are advised that a deposit will be required upfront, and on approval of the application for a licence the highways department inspect the site and advise the applicant how much the deposit will be and whether any parking bays need to be suspended. When the deposit and any other charges are paid the licence is issued to the applicant. The level of deposit is based on the nature of the works and the estimated cost of repair if damage does occur. It is not related to the size of the structure or the duration of the works. The assessment is made by a highways engineer to ensure that the costs are accurate.
Deposits can be paid by cheque, debit or credit card or via BACS transfer and credited to the application before the licence is issued. When work is finished, the applicant has six months to write to the borough telling them work is complete and requesting the return of the deposit. The site is then inspected for damage, and if damage has occurred the licence holder will be notified either that charges will be levied to the deposit or additional deposit is required to cover the costs of repair.
One example is where a deposit of £5,000 was held during works to demolish and reconstruct a mews and refurbishment of the mews next door. The structure (scaffolding, hoarding and a gantry) was 36m long, 25.5m high and 1.5m wide. Damage to the footway occurred and the council deducted £1,734 from the deposit to pay for the repairs. The remainder of the deposit was refunded.
The administration is split between highways, which assess the application, site and amount of deposit; and parking operations which manage the administration of the process and process the licence charges and deposits. This ensures that any parking bay suspensions are also paid for as necessary. Enforcement work is undertaken by a separate team.
The borough processes around 1,000 applications each year and has reasonably high rates of recovery, largely due to the assessment of the deposit amount needed. The staffing level for this particular council function is a part-time highways inspector, a full-time administrative officer, a part-time finance officer and part-time management input.
Other options
Improved communication and information sharing
Improved communications and information sharing between planning and highway departments may help to identify development work that should be monitored.
Respondents to an officer survey identified that any of these departments could be involved in improving the process.
- Building control
- Planning
- Highways enforcement
- Highways inspectors
- Finance
- Legal
- Noise / environmental health
- TfL
- Customer Services
- Project groups
Raising awareness of the issue and the powers available may help to encourage members of the public to come forward as witnesses of damage to highways and help to deter individuals and companies from causing damage.
More staff out within the borough looking for and investigating instances of damage could help.
Voluntary schemes
A softer option may be to explore the use of schemes such as the Considerate Constructor Scheme or establish a Code of Practice with the building industry. There could be useful practice from other sectors, for example where an independent surveyor acts in the case of household party wall disputes or where works of arts are loaned between galleries.