Last edited 17 Jul 2019

Section 278 agreement - works to existing highways

Section 278 of the Highways Act 1980 allows a developer to carry out works to the public highway. This is generally necessary where planning permission has been granted for a development that requires improvements to, or changes to, public highways.

The agreement between the highway authority and the developer is called a Section 278 Agreement, and it may allow for items such as:

Roundabouts.
Priority junctions.
Junctions with traffic lights.
Right turn lanes.
Improved facilities for pedestrians and cyclists.
Improvements to existing junctions.
Traffic calming measures.

The highway authority will be either Highways England for the strategic road network in England, or the local highway authority.

The agreement may include:

Details of the relevant planning permission.
The agreed design.
Details of any bond required.
Details of who will design and manage the works.
The programme for the works.
Provision for inspection and certification of the works.
Costs.

The developer may be responsible for designing, carrying out and paying for the works to the satisfaction of the local highway authority, or the highway authority may carry out the works. The developer may also pay for all or part of works carried out by the highway authority if they are carried out in a way, at a time, or are modified to suit the developer.

In addition to the works themselves, the developer may be required to pay costs associated with:

Making the agreement.
Agreeing the scheme for the works.
Permissions associated with the works.
Land acquisition associated with the works.
Administrative expenses incurred by the highway authority.
Maintenance of the works (commuted sums).

If the developer is carrying out the works, there may be a requirement for a bond to cover the highway authority against the possibility that the developer fails to properly complete the works, for example if they become insolvent. The bond will be released incrementally until a twelve month maintenance period has elapsed after the works are complete.

The planning application associated with the development will generally establish the principles of the works required. The highway authority cannot then refuse to enter into an agreement for the developer to undertake the approved works as long as the works meet the appropriate standards.

If the developer fails to make agreed payments, or if the works are not carried out in accordance with the agreement, the highway authority is empowered to close the access to the site.

The procedure necessary to reach agreement can be time consuming and protracted, and so it is desirable to enter into discussion with the highway authority as early in the project as possible.

Section 278 Agreements are often entered into alongside Section 38 Agreements, which enable developers to ask the highway authority to ‘adopt’ new roads along with associated infrastructure such as drains, lighting and supporting structures. See Section 38 Agreement for more information.