Section 278 & Section 38 Highway Agreements: UK Guide

Summary

The public highway in England — every adopted carriageway, footway, verge and the subsoil beneath — is controlled by the local highway authority (usually the county or unitary council, or Transport for London / National Highways for major roads). The legal default is simple and absolute: nobody may carry out works on, over or under a public highway without statutory authority. The two routes most contractors and developers meet are Section 278 and Section 38 of the Highways Act 1980. Confusing the two, or starting work without one in place, is the single most common and most expensive mistake in groundworks and residential development.

A Section 278 (S278) agreement is used when a development requires changes to an existing highway — a new bellmouth access, a roundabout, traffic signals, a right-turn lane, or a footway crossing. The developer funds the works, but the highway authority dictates the design, the standards, the inspection regime and who may carry out the work. A Section 38 (S38) agreement is used when new roads are built (typically inside a housing estate) and the developer wants the council to adopt them — to take them on as publicly maintainable highway once built to an approved specification and after a maintenance period.

For a working contractor the practical points are: you almost never get to "just crack on" with highway works; the design must be approved before a spade goes in; a technical bond or surety is usually lodged; commuted sums may be payable for future maintenance of non-standard features; and separate New Roads and Street Works Act 1991 (NRSWA) notices/licences and traffic management are required for any opening of the carriageway or footway. Getting these wrong stops a site dead.

Key Facts

• Section 278 (Highways Act 1980) — agreement for works to an existing public highway funded by a developer; design controlled and approved by the highway authority.
• Section 38 (Highways Act 1980) — agreement for adoption of new roads so they become highway maintainable at public expense.
• Section 184 (Highways Act 1980) — vehicle crossover / dropped kerb across a footway or verge; a separate consent from S278 and S38.
• Highway boundary — adopted highway often extends beyond the visible kerb line into verges and frontages; check the highway authority's definitive map before assuming land is private.
• No works without authority — altering, excavating or building on an adopted highway without an agreement is an offence; the authority can require reinstatement at your cost.
• Design first, build second — S278/S38 designs must be approved (drawings, levels, drainage, lighting, materials) before construction starts.
• Technical approval — drainage, structures (e.g. retaining walls, headwalls) and street lighting need separate technical approval within the agreement.
• Bonds and surety — a performance bond or cash deposit is usually required so the authority can complete the works if the developer fails.
• Commuted sums — lump sums to cover future maintenance of non-standard items (block paving, trees, SUDS features, signals) the authority would not normally maintain.
• NRSWA 1991 — the New Roads and Street Works Act governs opening the highway; a street works licence (Section 50) is needed for apparatus, plus notices and reinstatement to the Specification for the Reinstatement of Openings in Highways (SROH).
• Inspection and supervision — the authority inspects at defined hold points; fees are payable for checking and supervision.
• Maintenance period — for S38, a defects/maintenance period (commonly 12 months) runs before adoption is finalised.
• Insurance — public liability typically £5m–£10m is demanded; the developer indemnifies the authority against claims arising from the works.
• Town and Country Planning Act 1990 — highway agreements are usually triggered by, and conditioned within, the planning permission for the development.

Quick Reference Table

Detailed Guidance

When you need a Section 278 agreement

Any time a development connects to or modifies the existing highway, S278 is the mechanism. Common triggers: a new priority junction or bellmouth, a roundabout, traffic signal alteration, footway widening, a new pedestrian crossing, bus-stop relocation, or visibility-splay improvements. The works are often a condition of planning permission. The developer commissions a highways engineer to produce a design to the authority's standards (informed by the Design Manual for Roads and Bridges for trunk roads, or the local highway design guide), submits it for technical approval, and only after approval, payment of fees, lodging the bond and agreeing the programme can construction begin.

When you need a Section 38 agreement

S38 applies where new roads are built that the developer intends the council to adopt. Without adoption, the road stays private and the residents (or a management company) maintain it forever. Adoption requires the road to be designed and built to the authority's adoptable standard — carriageway construction depth, drainage, street lighting, footways, surfacing, signs and lines. After practical completion the authority issues a certificate, a maintenance period runs (commonly 12 months) during which the developer fixes defects, and only then is the road formally adopted and the bond released.

Section 184 dropped kerbs and crossovers

A vehicle crossover — dropping the kerb and strengthening the footway so a vehicle can cross from road to driveway — is authorised under Section 184, not S278. It is a much smaller process but still requires consent: the footway construction must be upgraded to the authority's crossover specification, statutory undertakers' apparatus (gas, water, BT, electric) must be protected or diverted, and the work is usually done either by the authority's contractor or an approved contractor on their list. See dropped kerb application for the homeowner-facing process.

Why a contractor cannot just open the footway

Want to work in the adopted highway?
        |
   Is it adopted?  -- No --> Private land: planning/building regs only
        | Yes
   Type of work?
        |-- New access/junction/alter highway --> S278 agreement
        |-- New road for adoption -------------> S38 agreement
        |-- Driveway crossover ----------------> S184 consent
        |-- Lay/repair apparatus (utility) ----> NRSWA s50 licence
        |
   In ALL cases also need:
        - Approved design / standard detail
        - NRSWA notice + permit (where permit scheme runs)
        - Traffic management plan / Chapter 8 signing
        - Reinstatement to SROH
        - Insurance + indemnity

Even with an agreement, the physical act of breaking out the carriageway or footway is governed by NRSWA 1991. Under a street works permit scheme the authority issues a permit with conditions and a working window; reinstatement must meet the SROH and carries a guarantee period (commonly 2 years for footways, longer for carriageways). Failing to notice works, overrunning, or substandard reinstatement attracts fixed penalty notices and re-dig orders.

Bonds, commuted sums and fees

The bond (or cash surety) protects the authority: if the developer goes insolvent mid-build, the authority can call the bond to finish the road safely. It is sized to the construction value and released in stages. Commuted sums are different — they are a payment toward the lifetime maintenance of features the authority would not otherwise adopt cheaply, such as block-paved areas, ornamental trees, traffic signals, or SUDS attenuation. Expect to pay the authority's checking, supervision and inspection fees on top, typically a percentage of works value.

Sequencing on a real site

1. Planning permission granted with highways conditions.
2. Appoint highways engineer; agree which sections are S278 and which are S38.
3. Submit detailed design for technical approval (highways, drainage, lighting, structures).
4. Negotiate the legal agreement; agree bond value, commuted sums, fees.
5. Lodge bond and insurance; pay fees; agree programme.
6. Serve NRSWA notices / obtain permits; submit traffic management.
7. Construct to hold points; authority inspects.
8. Practical completion certificate; maintenance period begins (S38).
9. Defects fixed; final inspection; adoption; bond release.

Frequently Asked Questions

Can I start the highway works before the agreement is signed?

No. Carrying out works on the adopted highway without the agreement in place is unlawful and the authority can stop the works and require reinstatement at your cost. Some authorities allow advance/early works under a separate licence, but only by prior written arrangement — never assume it.

Who actually builds S278/S38 works — the council or my groundworker?

Usually the developer's own contractor builds them, provided the contractor is competent and works to the approved design under authority inspection. Some authorities maintain an approved contractor list for certain elements (signals, lighting). The carriageway opening itself still needs NRSWA-qualified operatives (a supervisor and operative holding the relevant Street Works qualifications).

What is the difference between adoption and a planning condition?

A planning condition might require the road to be built to a standard; adoption (S38) is the separate legal process of the council taking it over for permanent maintenance. A road can be built to adoptable standard but never actually adopted if the S38 agreement is not completed — leaving residents liable.

How long do these agreements take?

S184 crossovers are weeks. S278 typically runs 3–12 months from design to start on site once negotiation, technical approval and legal drafting are accounted for. S38 can run well over a year including the maintenance period before final adoption. Build these lead times into the programme early.

Do I need a commuted sum for a standard road?

Generally no — standard bitmac carriageway, kerbs and standard lighting are adopted without a commuted sum. Commuted sums bite where you specify non-standard, higher-maintenance features (block paving, specimen trees, SUDS basins, traffic signals). Designing to standard details avoids them.

Regulations & Standards

• Highways Act 1980, Section 278 — agreements for works to existing highways funded by others.

• Highways Act 1980, Section 38 — agreements for adoption of new highways.

• Highways Act 1980, Section 184 — vehicle crossings over footways and verges (dropped kerbs).

• New Roads and Street Works Act 1991 (NRSWA) — street works licences (s50), notices, permits and reinstatement of openings.

• Specification for the Reinstatement of Openings in Highways (SROH) — mandatory reinstatement standard for highway openings.

• Town and Country Planning Act 1990 — planning permission that commonly triggers highway agreement conditions.

• Highways Act 1980 — primary legislation for sections 38, 184 and 278.

• New Roads and Street Works Act 1991 — street works licensing and reinstatement.

• GOV.UK: Build over or near a public road — highway works guidance.

• Planning Portal: Highways and the planning system — how highway agreements link to planning.

• dropped kerb application — applying for a Section 184 vehicle crossover.

• house extension process — where access and highway works affect a build.

• planning vs building regs — how the two consent regimes interact.

• suds design — SUDS features that can attract commuted sums on adopted roads.