Highways Practice Note 029 Highways Act Section 72 Guidance March HPN Control Sheet

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1 Highways Practice Note 029 Highways Act Section 72 Guidance March 2015 HPN Control Sheet

2 HPN Control Sheet HPN prepared by: Shanthi Selvarajan Development Management Engineer Highways SMO3, Unit 36, Childerditch Industrial Unit, Brentwood, Essex CM13 3HD T E shanthi.selvarajan@essexhighways.org W HPN Title HPN 029 Highways Act 1980 Section 72 Guidance Status Final Revision Control Date March 2015 Record of Issue: Issue Status Author 1 Final Shanthi Selvarajan Authorised by: Name Title Date Bob Southey Head of Asset Investment Mark Rowe Service Director Essex Highways Paul Bird Director for Commissioning: Transport & Infrastructure Cllr R L Bass Cabinet Member for Highways & Transportation

3 Contents 1. Scope Background Definitions Fees Practice a Collating Information b Action Process c Sealing the Deed and Records Management... 8 Appendix A... 9 Appendix B Appendix C Appendix D Appendix E

4 1. Scope This Highways Practice Note seeks to set out the process for officers to enable a Deed of Dedication under Section 72 of Highways Act 1980 to be sealed and completed by Essex Legal Services. In addition it will: Clearly identify when the Development Management team will complete the process and when an individual case will need to be referred to Essex Property and Facilities Provide concise guidance on the preparation of Deed of Dedication ready for sealing Provide concise guidance on how the Deed of Dedication is registered with Land Registry Enable the Deed of Dedication to be processed in a timely manner Ensure the process is followed in a consistent manner It is acknowledged that this HPN is for the Development Management team only. This is due to the delegations that have been passed from Essex Legal Services to the team to allow this new process. Any other team wishing to progress a section 72 agreement should speak to the Development Management who can process it on their behalf if it falls into the delegations. 2. Background A Highways Act 1980 Section 72 agreement enables the land adjoining a highway to be dedicated by its owner to the public for the purpose of widening of the highway. To be clear, this is not a transfer of land but a dedication of the land as highway maintainable at public expense. Under the same section, the Dedication can also be requested by the highway authority for the purpose of footpath creation under Section 25 or for highway widening. Typical situations where highway widening can be done under this section of Highways Act 1980 are as below. Bus shelter hardstandings Traffic Signal controllers Lamp Columns Visibility Splays Provide a clear highway boundary where the highway boundary is not clear on the historic maps Turning heads 3

5 Widen footways / cycleways or provide new footways / cycleways Lay bys Other Street furniture/highway infrastructure that cannot be located in the existing highway Bellmouth connections to the tangent point of the radius kerbs In Development Management, there are two situations which require different process to be used where this HPN can be applied. 1. where the works are about to be carried out on the area of dedication and on the adjoining highway land under a work permit 2. where the works within the area of dedication has already been carried out Situation 1 Dedication of land where the works are about to be carried out: Ideally, the scale of highway works where the dedication of land is done under this section of Highways Act will be minor and will therefore be done under Works Permit. Where there is a large scale highway work involving a dedication of land, the works will be done under a S278 legal agreement and the dedication of land will be incorporated within the S278 legal agreement. The key stage in this situation is that the Engineer needs to ensure that the Deed of Dedication is signed and sealed prior to issue of completion certificate. This is to ensure that the works are carried out to ECC standards and specification within the land for dedication and to our satisfaction before we can release the cash deposit taken for works. Situation 2 Dedication of land where the works have been carried out: Ideally, the Deed of Dedication should be signed and sealed before the developer leaves the site, but as soon as it is agreed between the two parties (land owner and ECC). 3. Definitions Highway Authority This will be Essex County Council (ECC), accepting the Dedication of land for the purpose of widening of highway Owner The applicant, generally the owner of the land who dedicates the land Tenement Piece of land. 4

6 4. Fees Simple Dedication: The cost to the applicant for simple dedications for processing the agreement will be for the legal fees needs to be banked to 8209 LEGL 0009, quoting the file reference and detailing the location. The remaining needs to be banked to 8274 PEST This fee will cover the officers time to process the application, obtaining the land registry details and the cost of registering the Deed with land registry. Complex dedication: Complex dedications which do not follow the standard template will need to be charged at as they will involve Essex Legal Services (ELS) and Essex Property and Facilities (EPF) as a bespoke site specific Deed will be required. If the Dedication involves more than one land owner, a further will be required for each parcel of land. This fee of 850 and any further charge for additional land owners for additional land registry checks needs to be banked to 8209 LEGL 0009, quoting file reference and location details. Dedication requested by the Highway Authority: The land owner shall not be charged any fee if the dedication of land is requested by the Highway Authority but will be processed through ELS as there might be a compensation event. Methods of Payment The fees can be paid by the customer by cheque made to Essex County Council or by BACS using following information Account Name: ECC Revenue Account Account number: Sort code: IBAN Code: GB85LOYD BIC / Swift code: LOYDGB2LCTY Branch name and address: Lloyds TSB PLC, City Office, PO Box 72, Bailey Drive Gillingham Business Park, Gillingham, Kent, ME8 0LS Add Reference: DM/279/99/AA/S72 (Example of new file number including Development Management/parish number/sequential number/officer initials/s72 ) 5

7 5. Practice The Engineer will be aware that a Dedication is required from the technical checking process involved when drawings for new developments are reviewed Where the Dedication is simple in that the template Deed of Dedication (Appendix B) can be filled in without any major changes then the officer can complete the process within Development Management under delegated powers. In complex cases, as listed below and where significant changes to the template will be required, the case should be forwarded to ELS to process. Dedication of land involves more than one land owner or where the landownership is not clear that requires checking title document to verify Dedication of land is requested by the county council and involves compensation event Dedication of land is requested by the land owner and involves compensation event Dedicated land needs any other licence or access rights 5.a Collating Information The officer who will be dealing with the Dedication will then send a standard letter (See Appendix A) to the applicant requesting the following information: 1. Six copies of A3 plans with a 1:1250 plan and a 1:500 inset plan showing the detail. The area of the Dedication to be coloured yellow and the plan to show the owners and Highway Authority land boundaries. North point and road names required. 2. Land registry details 3. Details of the Dedication area like existing surface condition, length, width, offset distance from kerb line, etc 4. Fees of for a simple Deed and for complex ones that will need to be referred to ELS. 5.b Action Process Once the developer has submitted all the information the following action will be required: 6

8 1. The / will need to be banked as explained in Fees (item 4) above 2. Officer to go to land registry and check that the ownership details provided by applicant are correct and acquire plan as below. Checking the applicant s proof of ownership a) If the title is registered the owner should be recited in the Proprietorship Register of the registered title. If unregistered there will be no owners and therefore a Section 72 cannot be progressed. Consideration could be given to processing a section 228 notice which is subject to separate HPN b) Ensure that the office copies provided are up to date c) Check the parties named in the registered title or root document are the same as those dedicating the land. 3. Dedication plan to be checked by Engineer that all the correct details are included and it ties up with the technical approved drawings. Complicated Dedications to be referred to ELS with a covering letter and the above attachments. Any further information as required by ELS shall be supplied by the officer to draft a site specific Deed for Dedication. Two copies of site specific Deed of Dedication will then be sent to the applicant by ELS for their signature. On receipt of both copies signed by the applicant the process from item.7 below can be followed. Standard ones to follow the procedure below. 4. The officer has to fill the Deed of Dedication template (see Appendix B) with all the relevant information and has to get it checked by the Engineer. If the works within the land for dedication are not completed, Clauses E to J shall be used to ensure the land becomes highway maintainable when the completion certificate is issued and works shall be detailed under Schedule on the deed. Where special materials or products with shorter life expectancies are used, or highmaintenance designs are utilised that will necessitate increased levels of maintenance (e.g. enhanced lighting columns / lanterns, soakaways, trees and landscaping etc.), appropriate commuted sum payments will be required by the Highway Authority to cover the additional costs of such future maintenance in which case Clause K and 3.IV shall be used. 6. Once checked by the Engineer, 2 copies of the template can then be sent to the applicant with a confirmation letter (Appendix C). The applicant will need to sign both templates witnessed by an impartial person. The letter states that by signing the Dedication the applicant is happy that the Deed will be sealed and completed and an original copy returned to them. 7. Once the applicant has returned the two copies of Deed, a Chief Officer Action (COA) needs to be completed by the officer by filling relevant information using the template 7

9 in Appendix D. This form can be signed by the Manager for Development Management to authorise ELS to seal the Deed. 5.c Sealing the Deed and Records Management 1. Two copies of the signed Deed template, the signed copy of COA and copy of the plan shall be sent to ELS to seal and complete the Deed. 2. Original copy of the Deed of Dedication sealed by ELS along with the final plan showing the extent of Dedication shall be sent to the applicant 3. The other original copy of the Deed shall be sent to Deed Registry for central filing to the following address using the form in Appendix E. Internal Postal Address: Deeds Cabinet CRMS, Area EUG, County Hall The postal address to send the form from the SMO area office: Deeds Cabinet CRMS Area EUG County Hall Market Road Chelmsford CM1 1QH 4. Copies of the signed COA, signed Deed of Dedication and plan should be saved in the Scheme Folder. 5. The Deed of Dedication can be registered with Land Registry for a charge of 40 using form (AP1) on the link below. This process can be completed by a Development Management Technical Assistant. Copy of the drawing to be submitted with the form. 6. A copy of the Deed and plan shall be sent to Asset Management team and Highway Records team to update on CONFIRM assetregister@essexhighways.org and highwayrecords@essexhighways.org. If there is a street light involved, then details need to be sent to lighting@essexhighways.org. 8

10 Appendix A SMO Office address Date: Our Ref: Your Ref: Dear xxxxxxxxxxx DEED OF DEDICATION (LOCATION) This is to acknowledge your requisition for dedication of a piece or a strip of land adjoining our highway boundary at xxxxxxxxx. This can be agreed under section 72 of Highways Act To enable the Deed to be progressed I require the following information from you: 1. Six copies of A3 plans with a 1:1250 plan and a 1:500 inset plan showing the detail. The area of the land for dedication shall be coloured yellow and the plans also shall show the highway boundary and other boundary details for the land. North point and road names are required. The existing surface material type, any permanent structures, objects or furniture on the land shall also be shown on the plan. 2. Land registry plans detailing ownership 3. Details of the area for dedication like length, width, adjoining land boundaries, location from nearest junction, etc 4. Fees of (for Simple standard Deed) / (for site specific Deed). [delete as necessary]. Please contact the officer for payment methods and details. Once you have returned this information we will check the land registry details and the plan and will then send you two copies of the template Deed of Dedication for you to sign and return. In the meantime please do not hesitate to contact me should you have any queries regarding this matter. Yours truly, 9

11 Appendix B THIS DEED is made the... day of X BETWEEN: (1) (owner) [of (address) (or) whose registered office is at (address), company registration no...] ( the Owner ), and (2) ESSEX COUNTY COUNCIL of County Hall Chelmsford Essex CM1 1LX ( the Council ). WHEREAS (A) The Owner is the proprietor of the land situated at (description of land, e.g. land at the junction of X Road and X Road, Chelmsford, Essex or land adjoining X Road, Chelmsford, Essex) shown coloured [yellow] on the plan numbered [....] ( the Plan ) annexed hereto. (B) The Council is the Local Highway Authority pursuant to the Highways Act 1980 with jurisdiction for the area within which the land subject to this Agreement is situated. (C) The Owner has agreed to dedicate the land amounting to (measurement, e.g. 9 square metres) or thereabouts and shown coloured [yellow] on the plan annexed hereto ( the Land ) for the purpose of (reason e.g. widening of the highway/extension of the highway) and pursuant to Section 72 of the Highways Act (D) The Council is willing to undertake the maintenance of the Land for the purposes of the Highways Act Delete Clauses E to J if the works are completed already (E) [The owner shall at its own expense complete the works (F) The Works means the work specified in the schedule and shown in principle on the drawings hereto for the making up of the Land as part of the Path (G) FOLLOWING completion of the Works the Owner shall apply to the Council in writing for the issue of the Completion Certificate (H) WITHIN fourteen days of receipt of said written application the Council shall inspect the Works and where necessary provide the Owner with a definitive list in writing of any remedial Works required to be carried out before the issue of that certificate 10

12 (I) ANY such remedial Works shall be subject to the same inspection procedure detailed herein until such time as they shall be completed to the reasonable satisfaction of the Council who within twenty eight days thereafter shall issue the Completion Certificate (J) UPON the issue of the Completion Certificate the Land shall be added to and form part of the highway and be maintainable at the public expense ] Delete clause K if there is no commuted sums taken (K) [ the Maintenance Fee of as agreed between the Owner and the Engineer as representing a reasonable estimate of the expenses which will be incurred by the County Council in connection with the special requirements for the maintenance of [ e.g. unusual drainage systems; soakaways street lighting traffic signals etc.] ] NOW THIS DEED WITNESSETH as follows: 1. Dedication The Owner hereby dedicates the Land to the Council as highway for use by the public 2. Maintenance The Council agrees to undertake the maintenance of the Land at the public expense. 3. Consideration IT IS HEREBY AGREED that the sum of One Pound ( 1.00 if demanded) consideration is paid to the Owner in respect of all compensation and is received in full and final settlement of all claims by the Owner on account of severance disturbance land acquisition and injurious affection of other land of the Owner howsoever arising by reason of the dedication by the Owner of the Land. IT IS FURTHER AGREED as follows: I) That the Land is subject to such easements, rent charges, rights of way, reservations or restrictions and like matters as currently exists; II) That the terms and conditions of this Agreement shall be in full and final settlement of all claims by the Owner in consequence of land acquisition, disturbance, severance and injurious 11

13 affection relating to the dedication of the Land to the Council including all claims under the Land Compensation Act III) That upon completion of this Deed the Owner shall pay the council the legal costs and professional fees incurred in connection with the grant of this Dedication Agreement. [IV) That upon completion of this Deed the Owner shall pay the council the maintenance Fee] THE SCHEDULE [Delete if the works are completed] (Schedule of works to be carried out within the land for dedication) This document has been executed as a Deed and delivered the day and year first before written The Common Seal of ESSEX COUNTY) COUNCIL was hereunto affixed in the ) presence of: ) [Executed as a Deed by (Company).. Acting by a Director and its Secretary (or two Directors)] [Executed as a Deed by (individual) In the presence of: Witness signature Name Address] 12

14 Appendix C SMO Area office Address Date: Our Ref: Your Ref: Dear xxxxxxxxxxx DEED OF DEDICATION (LOCATION) Please find enclosed two copies of the completed Deed of Dedication which you are required to sign, witnessed by an impartial person and return to this office. I have outlined the details of the Deed below for your information: Description: Brief description of location in the [parish] in the [district]. Interests to be acquired: Dedication of the land shown coloured/edged insert colour on the attached Drawing No XX (drawing should be Land Registry compliant, if not include term/condition 6 below). The land is dedicated to the County Council for the purpose of widening of Highways and will be maintained at a cost to the public in future. On signing the Deed you are agreeing to the sealing and completion of the Deed which will be returned to you for your records once our Legal Team have sealed the Deed and it has been registered with land registry. Please do not date the Deed, it will be dated on completion. In the meantime please do not hesitate to contact me should you have any queries regarding this matter. Yours truly, 13

15 Appendix D ACTION TAKEN BY HIGHWAYS & TRANSPORTATION Action by DIRECTOR FOR COMMISSIONING:TRANSPORT AND INFRASTRUCTURE under delegated powers CHIEF OFFICER Originator s name Telephone: File number(s) SECTION 72 AGREEMENT HIGHWAYS ACT 1980 That authority be given to seal the Deed of Dedication under Section 72 of Highways Act 1980 in the standard form between: ESSEX COUNTY COUNCIL ( the County Council ).( the owner ) For land at.. Off.. road In conjunction with Planning Application Number.(If applicable) In relation to the land adjoining the highway boundary for the areas coloured in yellow on. plan no.. Signature(s) Date(s) Designation(s) Authorising Chief Officer Manager Development Management 14

16 Appendix E Records Management Service Deeds Registry Deposit Form Name: Extension: Service: Division: Essex Highways Team: Development Management Type of Document(s) (Agreement, Lease, Contract etc.) Date of Document(s) Address/ Whereabouts of Property: Parties to Document(s): Any other relevant information/ comments?: Depositor s Details Document Details For office use only: Catalogue Number: Date Received: By: 15

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