Section 278 agreements explained
If your development project requires work on the public highway, this must be authorised by the local highway authority before any construction can begin. You will enter into a Section 278 agreement, which can have a range of practical implications on a project, so it’s important to understand what’s involved from the outset.
What is a Section 278 agreement?
Section 278 (S278) is a legal agreement between a developer and the local highway authority made under the Highways Act 1980. It is required when a developer has been granted planning permission but needs to make changes or improvements to a public highway. This includes any roadworks required to provide access to the development site. Works cannot begin until the S278 agreement has been completed.
An overview of the process
Before starting works
When applying for an S278 agreement, a developer must submit a range of documents, including a detailed design of the highway works and a full breakdown of costs. The local highway authority will review the submissions and may require amendments before they issue technical approval.
The S278 agreement will clearly outline the developer’s financial responsibilities, which include any application, inspection or approval fees required by the local authority. Before works commence, the developer will need to either secure a bond with a recognised financial institution or provide an upfront cash deposit – this protects the council against unforeseen expenditure in the event of unfinished works (ie. due to insolvency). The developer may also need to pay commuted sums, which cover the future costs of maintaining the highway works once they are adopted.
Upon completion of works
When the work has been completed, the local highway authority will inspect it and, if satisfied, provide a provisional certificate. At this point, the developer may apply for the bond or cash deposit to be reduced. However, responsibility does not end here; the developer remains liable for maintaining the highway works for an agreed period, which is typically at least twelve months. After this maintenance period, a final certificate is issued if the works are satisfactorily completed. The remaining bond or cash deposit is then released.
A fictional case study
A developer secures planning permission for a new retail park in a large town. To provide access to the new site, the developer must make significant changes to an existing junction and construct a new roundabout. To carry out these works, the developer must enter into an S278 agreement with the local highway authority. Detailed designs are prepared and approved, and a bond is put in place. The works are completed before the retail park opens to ensure safe access for the general public, thus complying with the planning conditions.
The importance of legal advice
S278 agreements can have a significant impact on both the cost and timeframe of a project, so they should be factored into the planning strategy. It’s important to coordinate the agreement with your planning permission, so that you can begin works within the specified timeframe. Our Town & Country Planning team can guide you through the process – get in touch with us on planning@attwaters.co.uk or 0203 871 0039.
