If you have received notice under the Advance Payment Code from the council, you may be unsure how you can challenge it. This article sets out issues you may wish to consider and how we can assist you in successfully challenging the council.
What is the Advance Payment Code?
Part XI (Sections 203-237) of the Highways Act 1980 sets out two statutory codes for making up private streets. These are known as the advance payment code and the private street works code. The private street works code empowers highway authorities to carrying out works in existing private streets including making it up for highway adoption. The advance payment code empowers highway authorities to obtain financial security in advance from new developments which will construct new private streets or front existing private streets. This financial security is the sum the highway authority can recover applying the private street works code.
The advance payment code is triggered upon the deposit of plans under the building regulations for the development. The highway authority can then serve an advance payment code notice (APC Notice) under section 220. The notice will require either a cash payment or a performance bond for such sum determined recoverable under the private street works code if the authority were to carry out street works to enable its adoption as a highway maintainable at public expense.
If you do not pay the sum specified in the APC Notice, then you may be committing an offence punishable by fine.
Impact of an APC Notice
The receipt of an APC Notice will likely be a significant financial burden to a development and its cash flow. It is received at a very early stage of the construction timescale. If paid or performance bond provided it will likely reduce the cash reserves for the development and incur ongoing costs for many years. Therefore, a successful challenge to an APC Notice could greatly improve the viability and commercial profits of the development.
The financial burden is even greater when the APC Notice has been issued in relation to roads that are intended to remain private with no public access. A typical example being short private residential cul-de-sacs.
Challenging the APC Notice
There are several possible grounds for challenging an APC Notice. We can guide you through them and advise which are most applicable to your development such as to improve the prospects of a successful challenge.
A few example issues are:
- Appealing: You can appeal to the Minister of Transport who has the power to substitute a smaller sum payable in the APC Notice. Such appeals must be made within a month of receipt of the APC Notice. While the sum payable may not be the main issue of challenge that may not mean you shouldn’t appeal. Ideally you should seek advice from us before the appeal deadline expires.
- Is it a private street? A fundamental question is whether the road is a ‘private street’ for the purposes of the advance payment code and private street works code. If not, then the codes do not apply. This is not a straightforward issue, and it can be an important question especially when roads are private with no public access.
- Is the APC Notice valid? It is always worth checking if the legal requirements for APC Notices have been met. If not, the notice may be void.
- Do any exemptions apply? There are several statutory exemptions under section 219(4). A commonly relevant exemption is whether in a reasonable time the private street will be either (a) substantially built-up or (b) in so unsatisfactory a condition as to justify the use of powers under the private street works code.
- Is it intended that the road be an adopted highway? If so, consider whether a s38 agreement could be entered into with provisions delaying the performance bond or cash deposit to a later date.