Potholes on a private road belong to the residents who live there. Councils do not carry out repairs or maintenance on these streets. Instead, the responsibility rests with the road’s owners.
The legal framework for road adoption in England and Wales is set out in the Highways Act 1980, with supplementary Department for Transport (DfT) guidance applying specifically to England. Private roads, often called unadopted roads, are not maintained using public funds.
Who maintains private roads?
Private roads are usually maintained by the residents who live alongside them. Sometimes a developer or management company may hold responsibility. In some older cases, the owner cannot be identified. Hackney Council’s guidance confirms that councils have no obligation to repair or clean these roads.
Where a defect poses a danger, the council may install barriers or temporarily close the road to make it safe. Permanent repairs remain the responsibility of the road’s owners.
How does private road adoption work?
Most new estate roads become public through a Section 38 agreement. Under this, the developer constructs the road to the council’s standards, pays fees and a bond, and maintains the road for a set period, typically 12 months. After this, the council issues a certificate to adopt the road.
Adoption transfers responsibility for ongoing maintenance to the council. The DfT calls this the “most common method” of road adoption. Prospective buyers are advised to check with solicitors whether a Section 38 agreement is in place before purchasing a property on a private road.
What if there is no adoption agreement?
Without a Section 38 agreement, options are limited. Under Section 37, owners can offer their road for adoption with at least three months’ notice, but the council may refuse if it considers there is insufficient wider public benefit. Cul-de-sacs with few homes may fall into this category.
Under Section 228, councils can issue notices to adopt roads but owners can object. The council can seek to overturn objections in court, but this is rare. The Private Street Works Code allows a council to carry out necessary repairs, bill the residents, and then adopt the road. However, this is seldom used due to high cost and time required.
What does this mean for residents and councils?
For residents, this means covering repair and maintenance costs. Councils are reluctant to adopt roads that do not meet current standards because every new road is an ongoing financial commitment. As Hackney Council notes, most do not have budgets to support these works.
This situation has led to examples where residents have paid to repair their own streets. It has also resulted in councils clearing significant volumes of fly-tipped waste on unadopted roads, adding to the local burden.
The process remains slow and expensive. Buyers and residents should not assume a private road will become public. Checking the adoption status and understanding responsibilities is vital before purchase.
