Tim, what sort of infrastructure and adoption agreements do you come across?
The most common by far are agreements for the adoption of on-site roads (Section 38 Agreements) and sewers (Section 104 Agreements). We regularly come across agreements relating to off-site highway works (usually Section 278 Agreements) and various arrangements relating to utilities, such as substation transfers.
Why do they all have names referring to section numbers?
They don’t all have such names, but many of them do. They refer to the section number in the relevant Act. A Section 38 Agreement is one made under the powers of Section 38 of the Highways Act 1980, for example. A sewer adoption agreement would be under Section 104 of the Water Industry Act 1991.
Are they complex agreements?
Most Section 38 and 104 Agreements are quite straightforward. They tend to follow a standard form. There are issues that need to be checked each time however, so it is best to ensure that someone with experience looks over them.
Other agreements can vary quite significantly. A Section 278 Agreement could cover a little white lining in the road (perhaps to create a ghost lane) or quite extensive highway improvements. Utility agreements can vary also, especially if they contain provisions for easements going through private gardens or third party land.
Are they time-critical or simply routine, to be dealt with as when the developer gets round to it?
They are not usually urgent, but that can depend upon the circumstances. For example, an electricity supplier may refuse to connect new properties until the legal documentation has been completed. Such documentation can take several weeks – and the developer is often in more of a hurry than the utility company.
Some agreements are also required before planning conditions are discharged, so it is important not just to assume that they can be picked off at leisure.
A further complication can come when the buyers of plots insist upon agreements being put in place or retentions being made from the purchase price until they are. Generally it’s good to get into the habit of addressing all such agreements at the start of development.
What other sort of infrastructure documentation do you deal with?
Under planning conditions or agreements, there is often a requirement relating to on-site open space. It may be adopted by the local authority or taken over by a management company. That needs to be thought through at an early stage. If a management company is to take it over, who is to pay the cost of future maintenance? That can often involve some form of regular charge being levied on plot purchases, so those arrangements need to be put in place at the start of the development and before plots are sold.