Redrow Homes Ltd, R (on the application of) v Knowsley Metropolitan Borough Council

Highways Act 1980, section 38(6), permits a consensual adoption agreement to require payment of expenses relating to maintenance after the highway becomes maintainable at public expense. The phrase bearing the expenses of construction, maintenance or improvement contains no implied temporal restriction. A highway may remain maintainable at public expense while private parties contribute towards its maintenance. The same interpretation applies to agreements concerning both privately maintainable highways and future dedicated highways. The statutory routes involving the magistrates’ court provide a safeguard against unreasonable terms, but do not limit the broader contractual power under section 38(6). The power may also extend to expenses relating to construction or improvement after the agreed adoption date.

The claimant, a housing developer, sought judicial review of the defendant highway authority’s proposed requirement for a commuted sum of approximately £39,000 towards future street-lighting maintenance. The proposed payment formed part of an intended agreement under section 38(3) of the Highways Act 1980, under which a future dedicated highway would become maintainable at public expense.

The central issue was whether section 38(6), particularly its provisions concerning the bearing of expenses and other relevant matters, allowed payment obligations relating to maintenance after the specified date of adoption.

1. Declaration granted. A section 38 agreement, including one made under section 38(3) of the Highways Act 1980, may require the non-authority party to pay a commuted sum or other sum referable to highway maintenance after the highway becomes maintainable at public expense.
2. The statutory concept of a highway maintainable at public expense does not exclude private maintenance or private contributions towards maintenance. Sections 44 and 278 demonstrate that private arrangements may coexist with the highway authority’s statutory maintenance duty.
3. Section 38(6) contains broad and open-textured language concerning the bearing of expenses of construction, maintenance or improvement. It contains no implied temporal restriction limiting those expenses to the period before adoption.
4. The reasoning applies equally to the section 38(1) scenario, involving a privately maintainable highway and extinguishment of an existing liability, and the section 38(3) scenario, involving a future dedicated highway. The same statutory wording cannot reasonably bear different meanings in the two contexts.
5. The mandatory magistrates’ court procedures, particularly section 53 for privately maintainable highways and section 37 for future dedicated highways, provide a safeguard where consensual terms are unacceptable. They do not prevent a highway authority and developer from agreeing wider lawful terms under section 38.
6. The power is not confined to maintenance. It may extend, where appropriate, to expenses relating to construction or improvement after the contractually specified adoption date. The claimant was ordered to pay the defendant’s costs of £23,892.25 plus VAT. Permission to appeal was refused, with time for any application to the Court of Appeal extended until 21 days after receipt of the approved transcript.

This was a first-instance judicial review. The court refused permission to appeal, directing that any application for permission be pursued before the Court of Appeal.