S278 agreement blog

What is an s278 agreement?

A section 278 agreement (or s278) is a section of the Highways Act 1980 that allows developers to enter into a legal agreement with the council (in our capacity as the Highway Authority) to make permanent alterations or improvements to a public highway, as part of a planning approval.

Examples of work covered by an s278 include:

• new or changed access into a development site (i.e., a bell mouth, roundabout, signalised junction, right turn lane or a simple priority junction)

• New/alteration of signalised crossings or junctions close to the development site.

Work affecting the highway can only begin when both the following have happened:

• s278 agreement is signed by the developer and the council (with performance bond agreed)

• all pre-commencement requirements listed in the s278 agreement have been met and approved by the council.

If you start work without the necessary approval, the Council reserve the right to take legal action against you. The grant of technical approval is not permission to commence works.

In most Councils, they use s278 agreements to allow developers to employ a road works contractor and for that contractor to work on the existing public highway in the same way as if we, the highway authority, were carrying out works. The developer is responsible for all aspects of the works on the public highway, from the design through to supervising construction and ensuring that the works are completed to our satisfaction.

For cases where a highway scheme requires developers to offer up land within their control for adoption as a public highway, please see section 38 agreements.

Work on Public Highways (Section 278 Agreement)

A Section 278 of the Highways Act 1980 agreement can be used to licence a developer to carry out improvement works on public highway which are generally necessary where planning permission has been granted for a development.

It is Council policy to apply this method of amending of existing highways. A Section 278 Agreement (Highways Act 1980) allows developers to enter into a legal agreement with the Council to make alterations or improvements to the public highway. Examples of work covered by this type of agreement include new access into a development site i.e., a roundabout, signalised junction, right turn lane or a simple priority junction.

A Section 278 Agreement may also be required for works such as a new signalised pedestrian crossing or improvements to existing junctions close to the development site.

The Council normally use this section of the Highways Act to allow the developer, to employ a contractor and for that contractor to work on the existing public highway in the same way as if the highway authority, were carrying out the works instead. The developer is normally responsible for all aspects of the works on the public highway, from design through to construction. The Council will inspect the works to ensure that they are constructed in accordance with the agreed specification.

At a planning application stage, the principles of the development layout are established such as the type of junction that will provide access onto the highway network, the scope of any off-site works required to mitigate the impact of the development and the internal road layout of the development.

Once a site has planning permission, a Council cannot fundamentally amend the approved layout and they cannot refuse to enter into an agreement for the developer to undertake highway works required to facilitate their development provided that all appropriate design and safety standards are met.

Where a developer is required to undertake highway works in association with their development the planning permission will require them to enter into a highway agreement to carry out the works.

Where highway schemes require developers to offer up land within their control for adoption as public highway the agreement would be under Section 38 of the Highways Act 1980.

If you require advice regarding the technical specification requirements, please contact the Council accordingly.

Bond (surety)

The council must be protected against the risk of unforeseen expenditure if the works are unfinished for any reason. A Section 38 or Section 278 Agreement is supported by a bond or cash deposit (default cost) calculated by the Highway Authority and based on the cost of the works proposed. This bond or cash deposit can be called upon if the developer goes into liquidation or otherwise defaults on his responsibilities.

Works cannot be undertaken on an adopted highway without a S278 Agreement has been completed and signed by all parties.

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:

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• 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.

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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.