Concepto jurídico indeterminado

The case study is described in detail here to reflect its richness and complexity both as an exploratory, revelatory case of housing development built to Code level 4 which will become mandatory for all new housing from 2013, and as an inherently interesting early-stage project. The project is referred to as Project A, and the site itself as Smith Lane.

Smith Lane is a two acre site, owned by the local authority, to the north of an East Midlands town. The terrain is rough scrubland with a significant 6 metre slope from the north west to the south corners. There are a range of physical challenges on the site, including boundaries of a railway to the west, a dual carriageway to the north, a brook to the east and an unadopted lane to the south which gives its name to the site. Figure 3.4 provides an aerial image of the site (Microsoft Virtual Earth, accessed May 2011) and additional photographs are included at Appendix 3.2.

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Figure 3.4 Smith Lane site (outlined in red)

The local authority’s 1996 Borough Plan identified the site for social housing as part of a larger three-part allocation including the case study site and two neighbouring fields. The first site was completed by a national housing contractor in 2001, and the project contractor completed the adjoining site in 2004. Following the housing association’s development of a nearby EcoHomes scheme, the local authority were prepared to give the Smith Lane site for free in return for the development of 52 homes built to Code for Sustainable Homes level 4. The council’s Strategic Management Team approved the donation of the land and the HCA agreed a grant.

The site entrance design was influenced by the ownership of an adjacent corner plot of land and the road layout reflects the need for a loop rather than a cul-de-sac. The homes were designed to mitigate noise from the A43 across the site.

Changes to the original concept were amended during the design phase. The number and layout of homes was altered following a re-assessment by the council of their requirements, reducing the number of flats and increasing the bungalows, with a revised total of 51 homes. The financial

86 plan, based on the outright sale of a number of homes to part-fund the development, was amended by the housing association client to reduce the homes for sale in the context of the collapse of the housing market in late 2008. As a result of these adjustments the client returned the grant to the HCA pending further analysis of the changed circumstances.

After the council Executive Committee’s eventual approval to give the land away, a planning application was made in March 2008 and turned down in October 2008 because of local concerns about noise and flooding. The planning permission process for Smith Lane, from the perspective of the local authority planning team, was normal, making steady progress through the standard process. However, staffing issues within the department contributed to delays within the process, exceeding the specified timescales. The project team re-submitted the planning application on November 2008 and permission was given in January 2009.

Following planning permission, two key issues delayed construction. First, the ownership of the section of Smith Lane itself that gives access to the site continued to present a legal complication which may compromise the adoption of the access road and ultimately the roads around the site. The neighbouring development, also constructed by the contractor, does not yet have adopted roads because their access also crosses Smith Lane. This road includes the ransom strip owned by the contractor leading across Smith Lane to the site. A claim was made for Smith Lane to be designated as a restricted byway, giving it public status and enabling it to be adopted. The claim precedes the construction of the road into the site. The client took an insurance policy to manage and control the risk of any work carried out across the unadopted Smith Lane.

Secondly, the client re-negotiated a grant with the HCA to bridge the financial shortfall generated by the alteration in the mix of volume and tenure and to reflect the build cost agreed between the client and the

87 contractor. This was subject to the HCA’s usual grant conditions, including an agreed date for completion. The HCA’s requirements generated a cost constraint on finalising the contract between the client and the contractor and a time constraint on construction. The contractor’s technical specifications required to meet Code 4 within the constraints of the budget were finalised and the legal teams began completing the contract details. At this stage the agreed case study research was completed with a second workshop, however continuing progress is briefly noted here to complete the story of Smith Lane.

A start-on-site date during November 2009 was critical in order to achieve completion by February 2011 to meet the HCA’s timescale. The start date depended on offsite work to satisfy Highway Authority and planning approval conditions, including ‘small works’ on approach roads to support access to the site and in line with the Section 278 agreement (which enables developers to alter roads defined as public highways).

In late November 2009 (after the case study data collection was completed) the contractor’s Board decided to pull out of the project. The client purchased the contractor’s ransom strip and invited tenders for the construction with a start date of early 2010, with completion planned for early 2011. An alternative contractor was engaged, building started during March 2010 and was successfully completed within the HCA’s timescale. Figure 3.5 shows the client’s site plan for shared ownership homes (accessed May 2011) which uses a similar layout to the one originally designed by the case study project team.

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Figure 3.5 Smith Lane site plan