Section 278 Agreements: A Developer’s Guide to Highway Works

A Section 278 agreement is a legal agreement under the Highways Act 1980 that allows a developer to carry out works to the existing public highway at their own cost and with the highway authority’s approval. It is usually triggered by a planning condition and no work on the highway can begin until the agreement is signed and the bond is in place.

If your development affects the public road, a new junction, a widened carriageway, or a crossing that wasn’t there before, you’ll almost certainly need one, and getting the timing wrong can delay your occupation date.

This guide covers what a Section 278 agreement involves, the process, the cost, how it differs from a Section 38 and the surfacing standards the finished work must meet before an authority will adopt it.

What is a Section 278 agreement?

The name comes from Section 278 of the Highways Act 1980, the provision that allows a highway authority to enter into an agreement with a third party, normally a developer, to carry out works on an adopted public highway. The authority keeps control of its road; the developer funds and delivers the improvements to the standard the authority sets.

In most cases, the highway authority is the county or unitary council for the area. For trunk roads and motorways, it’s National Highways. Put simply, whoever maintains the road in question is the highway authority for it.

What work does a Section 278 agreement cover?

A Section 278 agreement typically covers permanent alterations to an existing highway. This would include:

• New or altered junctions, including priority junctions, roundabouts and bellmouths
• Road widening and realignment
• Traffic signals and signalised crossings
• Pedestrian crossings, refuges and dropped kerbs
• New or connected footways and cycleways
• Drainage, lighting, signage and associated surfacing

The agreement sets out the scope, the technical standards the works must meet, the financial bond, the inspection regime and the process for adoption once the works are complete.

When do you need a Section 278 agreement?

You need a Section 278 agreement whenever your development requires a change to the existing adopted highway. The requirement usually arrives as a planning condition or through obligations tied to a Transport Assessment or a Section 106 Agreement.

A new housing scheme, for example, might need a junction onto the existing road to handle the additional traffic; a commercial site might need new access, a right turn or a crossing. Wherever the authority judges that the development would affect road safety or traffic flow, it can require the improvements before the site is occupied.

If the work is only on private land, this is a different agreement, which we cover further down the page.

The Section 278 process: Step by step

Below we’ve outlined the set sequence that a Section 278 agreement follows. Each stage has its own lead time. Understanding the process is the most effective way to keep your development on track.

1. Planning condition triggers the requirement: The decision notice specifies that highway works must be completed before occupation, sometimes before building above slab level.
2. Appoint a highways design consultant: A specialist transport consultant prepares the detailed design for the authority. This is a design role, not a construction one.
3. Submit for technical approval: The authority reviews the design against its own standards. This stage can take 12 weeks or more. It can be an even longer wait if signals or National Highways input are involved.
4. Legal drafting and negotiation: The authority’s solicitor drafts the agreement. The developer’s solicitor reviews and negotiates. This runs alongside technical approval but cannot conclude until the design is signed off.
5. Arrange the bond: The developer provides financial security so the authority can complete the works if the developer defaults. It is usually set as a percentage of the estimated construction value.
6. Sign the agreement: Once the design is approved, the terms are agreed, and the bond is in place, the agreement is executed. Now construction is permitted to start.
7. Construct with an approved contractor: Works must be built by a contractor that is approved by the authority. The inspector attends site during construction, with inspection fees being the developer’s responsibility.
8. Completion, snagging and maintenance: After a final inspection, any defects are put right. A maintenance period, normally 12 months, follows, during which the developer remains liable for defects. The bond is released once that period ends and the authority confirms sign-off.

How long will the process take?

Six to twelve months is typical from first design submission to a signed agreement. More complex schemes can be much longer. Some authorities will state three to four months as the norm, but this usually refers to their processing, once a complete application is in, not transition from design to sign-off. Start the design before planning is determined wherever you can; that way the agreement progresses in parallel with the main programme rather than after it.

What’s the difference between Section 278 and Section 38?

Section 278 and Section 38 are often confused with one another, and many developments will need both. In short:

• Section 278 covers the changes to an existing public highway
• Section 38 covers new roads built to be adopted into the public network

A housing development with a new junction onto an existing road and new estate roads inside the site would typically need a Section 278 agreement for the junction and a Section 38 for the internal roads.

In the example we used, the Section 278 junction often has to be finished before the Section 38 estate roads can connect to it. They should be treated as one connected sequence, not two independent jobs, or the dependency tends to surface too late.

What does a Section 278 agreement cost?

Costs for the agreement vary. Location, complexity and more can all be factors. Budgets shouldn’t just focus on construction; each category has a financial consideration.

• Highway authority fees: A checking fee for reviewing the design (normally a percentage of the works value), inspection fees during construction and the authority’s legal costs. These are fixed payments and payable regardless of the final build cost.
• Construction: The physical works, and variations in cost here can be significant. A simple bellmouth with dropped kerbs will cost a very different amount to a signalised junction with a widening. Furthermore, ground conditions, traffic management and utility clashes can all see increased costs.
• The bond: The financial security that is set as a percentage of the works value. It ties up capital for the works and the full maintenance period, so a six-month build can lock the bond for well over a year.
• Commuted sums: A payment some authorities require towards future maintenance of features that cost more to maintain. This could include signals, specialist surfacing or drainage within the highway.
• Traffic management: Temporary signals, lane closures and diversions. On a busy road, this can be a large share of the cost.

The construction cost is the main expense, but the fees, bond and commuted sums together can be a substantial amount.

What do the authorities require for the road to be surfaced to an adoptable standard?

This is where many developments falter. This is why having a reputable surfacing specialist is essential. Highway works are only adopted once the finished surface meets the authority’s specification. On roads, that specification is much more demanding than those found on car parks or private roads.

Adoptable highway surfacing is built in bound layers, each doing a job. There is the base and binder course for structural strength, and a surface course engineered for skid resistance, durability and drainage.

Authorities will normally require compliance with the Specification for Highway Works (within the MCHW), and the surface course often has to meet a stated skid resistance value. By getting the material spec wrong, or failing to deliver the correct compaction, the works fail the inspection, no matter how good the groundwork underneath is.

Material choice is one part of getting it right. A dense bitumen macadam binder course provides the structural layer; a thin surface course system is a common adoptable surface course delivering texture and skid resistance efficiently; and on heavily trafficked junctions, a polymer-modified asphalt resists rutting and deformation. Specifying the right build-up for the road’s classification, and laying it to the authority’s tolerances is what turns a completed junction into an adopted one.

Common Section 278 pitfalls to avoid

Starting too late: The most frequent and most expensive mistake is to start too late. Because the process takes six to twelve months, developers who wait for planning consent before beginning the design often watch the highway works become the critical path. Design can and should begin before determination.

Treating the planning-stage design as final: The access shown on the planning drawings is often a concept. Technical approval often requires changes to the initial design. Budgeting on the assumption that the planning design is the final design is a common source of overspending and delays.

Splitting the surfacing works off from the site programme: Appointing one team for the site and another for the highway surfacing can create difficulties. Streamlining to have the same contractor deliver the civils and the adoptable surfacing sees the sequencing, traffic management and site access within one programme and one point of accountability, rather than being split across two firms trying to coordinate.

How a surfacing and civils contractor fits in

It always pays to know who does what. Solicitors will handle the legal aspects, the highways design consultant will handle the detailed design and the technical approval. A surfacing and civil engineering contractor delivers the physical works once the agreement is signed and design approved.

Tidey & Webb has built and resurfaced roads, junctions, car parks and access works across the South East since 1977, working to adoptable standards with full liability cover and Constructionline and SafeContractor accreditation. Involving a company like ours from the outset adds more value to the project overall. With specialist expertise, issues in proposed construction, design and traffic management can be addressed early on.

Section 278 works across Sussex, Surrey, Hampshire and Kent

Every county highway authority applies its own standards, fees and approved-contractor requirements, so local knowledge is essential. Our team delivers highway and adoptable surfacing works across the South East and understands the importance of working to the specifications and inspection regimes of the local authorities. If your development crosses the point between public highway and new site roads, it helps to understand what makes a road adopted in the first place.

If you are planning a development that involves highway works, speak to the Tidey & Webb team. We are available for highway construction and adoptable surfacing across Sussex, Surrey, Hampshire and Kent. Get further information from us today, and we’ll assess your needs and let you know how we can help.