Last edited 23 Jun 2017

Section 38 agreement - adoption of highways

Section 38 of the Highways Act 1980 provides that when planning consent has been granted for a new development, developers may ask the highway authority to ‘adopt’ new roads that have been constructed as part of the development, along with associated infrastructure such as drains, lighting and supporting structures.

Adoption means the highway authority agrees to undertake maintenance of the road from an agreed date at the public expense. The agreement between the highway authority and the developer is called a Section 38 Agreement.

The highway authority will be either the Secretary of State for Transport or the local highway authority.

Before entering into an agreement, the developer must have obtained planning permission, including approval of any reserved matters. The planning permission will generally include an indicative layout of the roads to be adopted.

The Section 38 Agreement may contain:

Details of the relevant planning permission.
Drawings indicating the extent of the area to be adopted.
Provision for land dedication.
Technical drawings of the works.
A programme for the works and for the adoption.
Provision for inspection and certification of the works.
Agreement regarding the adoption, or not, of supporting structures.

There will be a fee associated with the agreement, covering the cost of; checking designs, preparing the agreement, inspecting the works, and ongoing maintenance of items not essential for highway purposes (commuted sums). There may also be a requirement for a bond from the developer to cover the highway authority against the possibility that the developer fails to properly complete the works, for example if they become insolvent.

The works must be constructed to a design and standard agreed by the highway authority. The developer will be responsible for carrying out the works at their own expense, and for maintenance costs until adoption.

There will generally be a 12 month maintenance period between the completion of the works and the adoption of the roads. If the development is phased, then adoption will generally take place after the final phase is completed. This is because the roads may continue to be used as a means of access by construction traffic.

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 38 Agreements are often entered into alongside Section 278 Agreements, which allow developers to carry out works to a public highway. This may be necessary, for example, to provide access to a new site or to improve access to an existing site. See Section 278 Agreement for more information.

NB Section 37 of the Highways Act 1980 enables developers to offer completed roads to the highway authority for adoption. This is generally considered a less desirable route than a Section 38 Agreement.