On housing developments that include new roads or modifications to the existing highway network, two specific legal agreements with the highway authority govern the work. Section 38 of the Highways Act 1980 covers new roads that will be adopted by the highway authority as part of the public network. Section 278 of the same Act covers works carried out within or adjacent to the existing public highway. Most housing schemes of any meaningful size involve at least one and often both.
Section 38 applies to the new roads inside the development that the developer intends to hand over to the local authority for adoption. The road has to be built to highway authority adoption standards, inspected at defined stages, and signed off as adopted-ready before the agreement is concluded. The detail varies by local authority but the framework is consistent.
Section 278 applies where the developer’s site needs to interact with the existing public highway. The most common cases are new junctions onto the public road, widening of existing roads to accommodate development traffic, and provision of footways or cycle infrastructure as part of planning consent. These works are carried out under license from the highway authority, to highway authority standards, and at the developer’s cost.
Both agreements involve technical standards, financial obligations, inspection regimes, and bonded sureties. The total cost of both agreements on a meaningful housing development can be a material proportion of the civils package. The developer who underestimates the cost or the duration of these agreements often discovers the gap during the live scheme.
For developers and QSs planning new schemes, the key items to understand at design stage are: which sections of road will fall under Section 38, which works will fall under Section 278, what the highway authority’s specific adoption standards are in the relevant area, and what the indicative timeline is for each agreement to be progressed through to sign-off.
GCE’s experience with the local authorities in the East of England and South East includes documented relationships with the highways teams at the principal authorities. The technical standards are familiar. The inspection rhythms are predictable. Where defects are identified at inspection, the remediation patterns are known. This regional familiarity allows GCE to programme Section 38 and Section 278 work against the developer’s plot release schedule with reasonable confidence in the dates.
The bonded surety element is the part developers most consistently underestimate. Highway authorities require a financial bond against the completion of Section 38 works to specification. The bond can run to several percent of the works value and remains in place until the works are signed off and the maintenance period has passed. The bond’s cost should be in the developer’s overall scheme financial model.
The maintenance period after adoption sign-off is the other commonly overlooked item. Most highway authorities require a maintenance period of twelve months after adoption during which the developer remains responsible for defects in the adopted road. Defects identified during the maintenance period are the developer’s cost to remedy, not the authority’s. Where the original installation was tight to specification, the maintenance period passes quietly. Where the installation cut corners, the maintenance period produces the deferred cost.
For developers seeking to release plots ahead of Section 38 adoption, undertakings or alternative arrangements with the highway authority can sometimes provide a route. The detail varies and depends on the authority’s willingness to engage. GCE’s working relationships with the relevant authorities in the East and South East include experience navigating these arrangements.
For QSs reviewing civils tenders, the Section 38 and Section 278 elements need specific attention because they are commonly priced as lump sums against a developer’s outline programme. Where the outline is wrong, the lump sum is wrong, and the variations that follow are uncomfortable. Specifying the highway authority’s standards explicitly at tender stage is the right way to manage this. The contractors who price honestly against those standards produce stable budgets. The contractors who price hopefully produce ones that move.
Talk to Globe Civil Engineering To discuss Section 38 and Section 278 highways agreements on your scheme, contact Globe Civil Engineering on 01223 890727 or email enquiries@theglobegroup.co.uk.
