Local Council's "Senior Highway Inspector" being RIDICULOUS!

[Adsibob]

I received a letter today from my local Council telling me that I had breached section 172 and 173 of the Highway Act 1980 by not applying for a licence from them for my hoardings. The letter closed by pointing out that "Any hoarding erected without a licence is an offence... If a person contravenes this section, he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale which is currently £1,000; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding £2 for each day on which the offence is so continued." Having now read those statutory provisions, it is my firm understanding that if I don't remedy the situation I could be charged and convicted of a criminal offence. That is obviously a very serious matter.

 

I had no idea one needed a licence to erect hoardings. Reading into the history of the legislation, it appears to have been enacted following some scandals in the 70s about children who got terribly injured, sometimes fatally, by trespassing on building sites that didn't have hoardings. The landowners weren't held liable because under the Occupier's Liability Act one is not liable for losses arising from trespass.  These provisions of the Highway Act were therefore enacted to prevent that happening. Fair enough, makes sense, and even though I didn't know I had to have hoardings as a matter of law, common sense told me to put them up anyway. I've done 2.4m all the way around the perimeter of my front yard, with a heavy security gate that is clad in timber. All the timber is painted with weatherproof paint and the builder has put his contact details and various health and safety notices up on it for all to see.

 

Unfortunately, he did that only after the inspector visited the property and took a photo which has now been appended to the Council's rather menacing letter. The letter has a deadline for applying for a "retrospective licence" by 13 May 2021. I received the letter today.

 

The Council's licence application form requires me to jump through various hoops. None of those hoops are mentioned in the legislation. This is just Council Policy, not law. The law just says I need to erect hoardings to the Council's "satisfaction... so as to separate the building from the street", and there is then a separate provision that says that I have to add certain bells and whistles, if they require it, such as a handrail and lighting during the hours of darkness. Whereas the Policy says I have to apply for a licence, provide evidence to the Council, as part of the licence application that I have £10 million public liability insurance and also pay the Council the licencing fee of £195 and a deposit which is the minimum sum of £593.86 but subject to their say so depending on their assessment of "the risk to the integrity of the highway". So if they deem the deposit should be more, they can. Again, that aspect of the Policy is not legislation. 

 

I have discussed the matter with a former colleague (who is a criminal barrister) and I also happen to be legally trained, so I know that legally they are entitled to interpret this to mean that they can force me to go through a licencing scheme and they can also specify what hoardings they want and how lit up they should be etc. BUT, beyond that, they are basically trying their luck and it's 50/50 as to whether those additional licensing requirements are reasonable and proportionate to the object of the legislation, which is to protect trespassers from injury.

 

My question is, has anybody dealt with a Highways Inspector on a matter like this or similar? I don't want to push this to Court in that the only way to do this is:

• risk a conviction and a £1000 fine - no thanks; or
• jump through the hoops and then sue the Council for Judicial Review - which would be time-consuming and I only have a 50/50 chance of winning.

 

But at the moment I can't actually satisfy the requirements of the licence application form. I and my builder only have £5M public liability cover. (He also has £10M employer's liability cover, but this is not relevant here.) It just doesn't  seem reasonable that I or my builder has to pay for additional insurance cover when we are actually already complying with the main purpose of the legislation which is to have safe hoardings that effectively separate the building site from the street.

 

Oh, and I wrote to the Council today to ask for an extension to their deadline of 7 days from the date of their letter, and they said "no." W@nk!r$ !!!!

 

And the other thing I find amusing is that the Council Policy is that hoardings must be at least 2440mm high. Mine are 40mm shorter than that!!! 

Edited May 11, 2021 by Adsibob

[joe90]

Sorry to hear your having such trouble. I know nothing of this but most sites have heras fencing and I have not heard of anyone needing a license . We had nothing (but in the sticks) and trouble with the enforcement officer because of a nasty neighbour but no talk  of hoardings or fencing (but we did stick a “site“ notice on the gate).?

[PeterW]

Remove and replace with Heras fencing tomorrow. 
 

Job done if it’s more than 1m from the highway as from memory that’s the legal distance. 

[Adsibob]

22 minutes ago, PeterW said:

Remove and replace with Heras fencing tomorrow. 
 

Job done if it’s more than 1m from the highway as from memory that’s the legal distance. 

Thanks.   So I pointed out to my builder that he could change the hoardings so that they are 1m set back. (This isn’t mentioned in the legislation, but is mentioned in the Council’s guidance.) He said he would charge me for the work and that it would cost more than the £195 licence fee. At the time, I thought it was a simple case of paying the licence fee, but  this was before I discovered the requirement for £10M public liability insurance. I feel like the builder should have done better for me here. He is experienced enough to know about the licensing regime so really he should have known about this. When I challenged him on this, he said he had never worked in this London borough and that he thought the licence was only required in more central London boroughs. But googling other council’s websites, I think it is a fairly common requirement in many London boroughs. It just feels so unfair.

 

 

[Adsibob]

31 minutes ago, PeterW said:

Remove and replace with Heras fencing tomorrow. 

Just googled this. It doesn’t  look very secure. I don’t have windows or a front door at the moment.

[Adsibob]

Just checked my contract and it is the builder's duty to:

 

"comply with all statutory obligations applicable to the Works."
 

Fat lot of luck that will do me in a criminal court though!

[Ronan 1]

All the legal obligations / requirement regards site security and the requirement for hoarding is covered under CDM If I remember correctly worth a review before your response / action to council , not to add to it but I also thought that site hoarding will require a temporary works design and design certificate now too.

[Jilly]

7 hours ago, Adsibob said:

Just checked my contract and it is the builder's duty to:

 

"comply with all statutory obligations applicable to the Works."
 

Fat lot of luck that will do me in a criminal court though!

Ohh dear, find a compromise with him if you can and calm the situation down. 

 

Not sure if it's any consolation, but dramas seem to be part of this building malarky. 

[George]

The builder should have known.

 

Hoarding licences are a very common requirement and his competitors have to be doing the same thing.

[epsilonGreedy]

Send them a registered letter claiming that their demand is is not lawful because it is impossible to comply with due to an administrative error within the Council that offered minus 18 days to resolve the problem.

 

Then add that while you await delivery of a lawful request from the Council you are investigating how to comply with hoarding regulations but the poor presentation of council policy means you are not sure how to act.

 

You will have to comply eventually but the letter buys you time.

Edited June 1, 2021 by epsilonGreedy

[joe90]

22 minutes ago, epsilonGreedy said:

Send them a registered letter claiming that their demand is is not lawful because it is impossible to comply with due to an administrative error within the Council that offered minus 18 days to resolve the problem.

 

Then add that while you await delivery of a lawful request from the Council you are investigating how to comply with hoarding regulations but the poor presentation of council policy means you are not sure how to act.

 

You will have to comply eventually but the letter buys you time.

+1, the £195 fee is peanuts in the scheme of things but point the contract note above to your builder and see what he says.

[Mr Punter]

You only need a licence if the hoarding is on the road, but you must make sure the work site is secure to avoid unauthorised access and separate the site from the public.

[SteamyTea]

5 hours ago, Mr Punter said:

You only need a licence if the hoarding is on the road, but you must make sure the work site is secure to avoid unauthorised access and separate the site from the public.

Is this one of those cases where you legally have to do something, then there is another law that says it is illegal to do it?

[Mr Punter]

9 hours ago, SteamyTea said:

Is this one of those cases where you legally have to do something, then there is another law that says it is illegal to do it?

 

No so much.  You need a hoarding but don't put it on the road unless you get a licence and comply with attached conditions.

[Ferdinand]

One q that has not been totally clarified.

 

So if it is more than 1m back it does not require a license? 

 

On the Heras you could potentially cover it with  something eg fake grass to ae it look more attractive, and block he view.

 

What does the extra cover to £10m actually cost? That may be an option in your policy and the cheapest route.

[Big Jimbo]

Ferd, grass, that is so common. You can get fake Ivy, and all sorts. I thought you were better than "Grass"?

[Adsibob]

Thanks all. I should have updated you earlier. I think it’s all sorted now. Builder contacted the council after I got a little contractual with him, and he paid the fee for the licence (peanuts) plus an exorbitant deposit of £1600 in case he damages the Council’s pavement. 
I put my legal knowledge to use and did some research and came to the conclusion that the Council is probably exceeding their powers by demanding such a high deposit and such a high insurance cover, rendering their scheme amenable to judicial review. Unfortunately, I don’t have the time or energy to apply for judicial review, so I have just left it for the builder to resolve. To cover myself I wrote a polite, but firm letter to the Council attaching copies of the relevant clause in my contract and the emails between them and my builder confirming they had received his payment. 
So fingers crossed it’s all done, but I think the problem might resurface in a couple of months when the licence “expires”. This red tape is unbelievable.

oh, and having the hoarding 1m in would only have been a temporary solution for us because we are digging up the driveway in a couple of months.