THE ADVANCE PAYMENTS CODE & THE 'SIX WEEK RULE'
The "advance payments code"
The
“advance payments code” (“APC”) means the code provided by sections 219 to 225
of the Highways Act 1980: Section 203(1). The APC has effect for securing payment of the expenses of the execution
of street works in private streets adjacent to new buildings: Section 204(2).
The
APC ensures that a sum equivalent to the likely costs of making up the private
street is paid to the highway authority or secured before a new building is
erected. The objective of the exercise
being to put the highway authority in the position of being able to step in and
carry out the street works in the event that the developer fails to do so.
A
developer is not entitled to commence work (unless the works are exempted) on a
building served by the street and for which building regulation approval is
required unless and until he has paid to the highway authority a sum equivalent
to the likely costs of making up the private street or provided an equivalent
security. The authority must (unless the works are exempted) within 6 weeks
from the date when plans are passed under the Building Regulations prior to the
commencement of construction of the new building serve a notice requiring
payment or a security. It is a criminal offence to carry out such works if an
advance payment is not made or security given in the absence of an exemption.
The
general principle is subject to a number of exemptions, the most notable being
the entry by the owner into an agreement under section 38 of the Highways Act
1980.
If
the developer makes up the street, then the advance payment is refunded or the
security is released. If the developer does not make up the street then the
street authority can make up the street under the private street works code and
recover its costs from the advance payment or the security.
Section
219(1) provides that where‑
(a)
it is proposed to erect a building for which plans are required to be
deposited with the local authority in accordance with building regulations, and
(b)
the building will have a frontage on a private street in which the
street works authority have power under the private street works code to
require works to be executed or to execute works,
no
work shall be done in or for the purpose of erecting the building unless the
owner of the land on which it is to be erected or a previous owner thereof has
paid to the street works authority, or secured to the satisfaction of that
authority the payment to them of, such sum as may be required under section 220
in respect of the cost of street works in that street (i.e. broadly the sum
which would be recoverable under the private street works code).
The
“building regulations” are regulations currently made pursuant to the Building
Act 1984. One question is whether the reference to the deposit of plans with
the local authority is affected by the fact that external approved inspectors
may be involved in checking plans as opposed to in-house local authority
inspectors. There are three responses. First, section 219(1) does not say that
the APC applies only where plans are, in fact, deposited with the local
authority. The words “ .
. a building for which plans are required to be deposited . . “
do not described a process, they describe a type of proposed building; namely,
a building which is subject to building regulation control before its
construction. Secondly, an external approved inspectors does not usurp all of
the local authority’s functions. His role is that of notification and
certification subject to the ultimate control of the local authority. Thirdly,
section 16(9) of the 1984 Act still requires the deposit of plans albeit that
they may be accompanied by an approved inspector’s certificate of satisfaction.
Section 220(1)
provides that, in a case to which section 219 applies, the street works
authority shall, within 6 weeks from the passing of any required plans relating
to the erection of a building deposited with them or, in a case to which
subsection 220(2) or 220(2A) applies, with the district council or Welsh
council, serve a notice[1] on the person by or on whose
behalf the plans were deposited requiring the payment or the securing under
section 219 of a sum specified in the notice.
The words “ . .
.within 6 weeks from the passing of any required plans relating to the
erection of a building deposited with them . . . “ is the provenance for the so-called “six week
rule”.
This situation is
complicated when the street works authority is not the body which deals with
Building Regulation approvals. Section
220(2) provides that, where (outside Greater London) the APCis in force in the
whole or any part of a non-metropolitan district, the district council shall,
within one week from the date of the passing of any required plans deposited
with them relating to the erection of a building in an area in which that code
is in force, inform the street works authority that the plans have been passed.[2] Thus, in these cases, the six weeks period is
reduced, in practice, to five weeks.
- The ‘building by building’ approach
- The “work by work” approach
- The role of the APC notice
- Examination of the validity of “late” APC Notices
Validity of “late” APC Notices
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The often expressed
concern relates to the consequences of the service of an APC notice is outside
the six weeks period mentioned in Section 220(1), in particular, whether the
application of the APC to the relevant scheme is thereby prejudiced. There are a number of possible responses to
this conundrum:
It is important to
note that the APC was designed to apply on a building by building
approach. That is to say, the relevant
statutory provisions are cast in the singular.
Thus, Section 219(1)(a) uses the
phrase ” . . .it is proposed to erect a
building” and 219(1)(b) “ . . .the building . . “.
Similarly, Section 220(1) refers to “ . . .plans relating to the erection of a building . . “. It follows that, if the development will
comprise more than one building, then the late service of an APC notice should
not preclude the service of APC notices in respect of later buildings within the
same scheme.
Perhaps a correct
way of putting this point is to ask whether the service an APC notice is a
precondition to the operation of the criminal sanction in Section 219(2).
The conditions
which engage Section 219(2) are clearly set out in the section itself; namely,
that Section 219(2) is engaged “ . . . if work is done in contravention of
Section 219(1), . . “. Work for
the purpose of erecting a building is done in contravention of Section 219(1)
if that section applies and that work is carried out without the payment to the
street works authority of such sum as may be required under Section 220 or the
provision of the appropriate security for that sum. Section 219(2) does not state that an APC
notice must be served before the criminal sanction can be applied. The point thus appears to reduce to the
question of whether there anything in the context of this part of the Highways
Act 1980 which leads the implication that the service of an APC notice must precede
any potential criminal liability under Section 219(2).
Section 219(1)
states: “ . . . .[the relevant] owner thereof has paid to the
street works authority, or secured to the satisfaction of that authority the
payment to them of, such sum as may be required under Section 220 . . .”
(Emphasis added). Clearly, it is
possible to argue that if the street works authority has not “required” a sum
under Section 220, then the commencement of the works in the absence of such a
requirement is not in contravention of Section 219(1). However, this argument appears to suffer from
a fatal flaw; namely, that, it does not deal with the fact that the street
works authority is given six weeks to thus require the said sum. If this
construction is applied, then the owner could start work during this six week
period without fear of any criminal sanction.
Arguably, the
structure of the statute appears to give Section 220(1) an altogether different
role.
Section 219(1)
provides that no work shall be done in, or for the purpose of, erecting a
relevant building unless the owner of the land on which it is to be erected (or
a previous owner thereof) has paid to, or secured to the satisfaction of, the
street works authority such sum as may be required under Section 220 in respect
of the cost of street works in that street.
Section 220(3) goes on to say that the sum to be specified in an APC
notice is such sum as, in the opinion of the street works authority, would be
recoverable under the private street works code in respect of the frontage of
the proposed building.
Clearly, the
developer would be under some difficulty if his Building Regulation plans have
been approved, yet the street works authority is then tardy in calculating the
relevant sum for the purposes of the APC. Arguably, the purpose of the six weeks’ time
limit in Section 220(1) is to ensure that the developer is provided with this
information within a reasonable period of time. If it were otherwise, then the developer would be unable to proceed with
his scheme whilst the said tardy authority is cogitating on the relevant
sum. Thus, when viewed in this way, the
six weeks’ time limit is designed to ensure that the developer is provided, in
a timely manner, with the information which allows him to discharge the requirements
of Section 219(1).
Section 219(2) sets
out the terms of the criminal sanction and then adds “ . . and any further
contravention in respect of the same building constitutes a new offence and may
be punished accordingly”. It should,
therefore, follow that, if an APC is served out of time, then, whilst it might
not have been effective in respect of works carried out before its service, it
should bite on works carried out after the date of its service. If the argument is that Section 219(1) is not
contravened unless an APC notice has been served, then the service of the
notice should remedy this problem, albeit late in the day.
A public law lawyer may, almost as a matter of
course, say that the preliminary question is whether an APC notice which is
served out of time is “invalid”.
There is a line of older
authority which seemed to imply that certain procedural requirements, such as
time limits, could be characterised as either ‘mandatory’ or ‘directory’. A notice issued in breach of a ‘mandatory’
requirement being a nullity whereas non-compliance with a ‘directory’
requirement would render the notice ‘invalid’.[3]
Arguably, this purported distinction is more rhetorical than real.
In London &
Clydeside Estates Ltd v Aberdeen District Council [1980] 1 W.L.R. 182. the House of Lords considered the case of a
defective certificate of alternative development. Lord Hailsham stated that the use of
expressions such as “mandatory”, “directory,” “void,” “voidable,” “nullity” and “purely regulatory” should not be regarded as requiring a particular
case to be fitted into one or other of mutually exclusive compartments borrowed
from other branches of law, since what is to be considered is the legal
consequence of non-compliance on the rights of the subject viewed in the light
of the concrete state of facts and a continuing chain of events, which may
present, not a stark choice of alternatives, but a spectrum of possibilities in
which one compartment or description fades gradually into another. Whether one agrees with the ‘spectrum of
possibilities’ point or not, this is a clear direction to look at the substance
of the matter and not its form.
In
Main v Swansea City Council (1985) 49 P. & C.R. 26, the Court of Appeal considered the validity of
the grant of an outline planning permission where the Certificate of Ownership
under s.27 of Act of 1971 wrongly stated that requisite notice given to all
owners of land in question, when a small area was owned by unidentified person. The action to quash the permission was
dismissed. Throughout the period between
the grant of outline planning permission and the approval of reserved matters
the applicant had not objected to the outline permission. The Secretary of State had known of the
position for a long time and not sought relief. Since the scheme approved did
not involve development of the land owned by the unidentified person, it was
too late, at any rate at the suit of the applicant, to quash the planning
permission. Parker L.J. gave judgment on behalf of the whole court.[4] He referred to the words of Lord Hailsham in Clydeside and stated;
“We do not find it necessary to cite the passage in full. It is a warning against trying to fit either failures to comply with requirements, or the consequences of such failures, into rigid classes and a clear expression of the view that the task of the court, which is inherently discretionary, is to determine the legal consequences of a failure in the light of a concrete state of facts and a continuing chain of events. In our judgment, the most significant observation in Lord Hailsham's speech, indeed in the whole of the Clydesdale (sic) case, is that the court must consider the consequences in the light of a concrete state of facts and a continuing chain of events. This recognises that the court looks not only at the nature of the failure but also at such matters as the identity of the applicant for relief, the lapse of time, the effect on other parties and on the public and so on”.’[5] (Emphasis added)
If one applies this
approach, then it is far from clear that an APC notice which is served outside
the six week period is, thereby, robbed of its legal validity.
The purpose of the
legislation in which the APC provisions appear, is to ensure that, subject to
certain exemptions, buildings are served by properly constructed roads. This
purpose goes directly to the safety of both the future occupiers of the
building and also members of the public who will be using the road. This latter
point is of particular importance where the road in question forms a connection
which will be well used by the public. As is often the case in public law, this
is not a transaction which is limited to the developer and the street works
authority. There is a substantial public interest in the application of the
APC. If, for example, the developer goes into liquidation before the road is
completed, then the frontagers may be left with either a massive bill to bring
it up to a proper standard or a substandard road, and the latter would, of
course, be of detriment to those members of the public who then use the way.
In Hughes v
Local Government Ombudsman [2001] EWHC Admin 349 the developer did not make
an advance payment or provide the appropriate security and then went into
liquidation. The works that were done to
the road were carried out unsatisfactorily and at least the sum of £42,000, if
not more, was needed required to bring the roads into a satisfactory
condition. The Ombudsman concluded that
there was maladministration by the Hartlepool Council, but that there was no
injustice resulting, and consequently no order or recommendation was made by
the Ombudsman. Burton J. held that the
finding of no injustice was wrong and ordered the Ombudsman to revisit her
decision:
[71]. “This is a case which I have found difficult, simply because if I were the Local Ombudsman deciding this matter I would have no doubt whatever that there has been gross maladministration and very serious injustice, . .”
Whilst, plainly,
the developer has an important interest in the proper administration of the APC
procedure, it is arguable that this is outweighed by the interests of the
future frontagers and the general public, at least when it comes to weighing up
the consequences of a late service of an APC notice. It is difficult to see how a judge could
reasonably conclude that the whole of the APC should fall away just because the
APC notice was late.
[1] Called an “APC notice” in these notes.
[2]
Section 220(2A) goes on to provides
that, where any required plans which - (a) are deposited with a Welsh council;
and (b) relate to the erection of a building in an area - (i) in which the
advance payments code is in force; but (ii) which is treated as being within
the area of a street works authority other than that Welsh council, are passed,
the Welsh council shall, in any case to which section 219 above may be
applicable, within one week inform the street works authority of that event.
[3] The
proposition being that, if a notice is a ‘nullity’, then it has no legal effect
whatsoever and, in legal theory, no legal consequences flow from it. If a
notice is ‘invalid’, then it has legal effect unless and until it is quashed or
otherwise upset.
[4] Cumming-Bruce L.J., Parker
L.J. and Sir John Megaw.
[5] Approved
by a differently constituted Court of Appeal in R. v London Borough of
Lambeth Council Ex.p Sharp (1988) 55 P. & C.R. 232. Applied in R. (on the application of
Wembley Field Ltd) v Chancerygate Group Ltd [2005] EWHC 2978 (Admin).
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