The HBF and Haslam Homes have won a significant victory in the battle against commuted sums.
The HBF has been working with Solicitors and Counsel to consider a challenge to a local authority charging certain commuted sums.
Many highways authorities require, or purport to require, that as a term of agreements made under Section 38 of the Highways Act 1980, the developer shall pay a capital sum to cover the costs of future maintenance of the road, even though the purpose of the agreement is that the road will become a highway maintainable at the public expense.
While in some authorities these are quite minor sums intended to cover the use of non standard paving or lamp columns, in others the sums are set at a flat rate which for some developments may be thousands of pounds. For some time the HBF has been arguing that highways authorities are not entitled in law to require such payments.
Afer considerable initial groundwork, Haslam Homes and the HBF formally challenged Lancashire County Council earlier this year with a view to taking a High Court action to seek a judicial review.
However, when presented with the reasons why the HBF's Counsel believed the provision to be unlawful, Lancashire County Council conceded that it was unlawful and the agreement has now been signed.
While this falls short of the judicial review that we were seeking, it does set a clear precedent and we will be advising members to challenge any authority attempting to include such provisions in Section 38 agreements in the future.
To assist you, HBF has asked Lodders Solicitors to prepare a summary of the current position that you may present to any authority minded to argue.
HBF has received several queries about reclaiming sums already paid. The fact that Lancashire have conceded, although it sets a precedent, does not actually give us a legal position so other authorities are unlikely to agree to refund money already paid.
If you have any queries please contact Dave Mitchell on 020 7960 1621 or email dave.mitchell@hbf.co.uk.