A Section 38 Agreement (or S38) is a section of the Highways Act 1980 that can be used when a developer proposes to construct a new estate road for residential, industrial or general purpose traffic that may be offered to the Highway Authority for adoption as a public highway.
A developer may complete the construction of a road then offer it to the Highway Authority under Section 37 of the Highways Act 1980 (external link), however, S38 (external link) is more desirable, due to the fact that the council has no power to insist that a road is made up to an adoptable standard, or that it will then be offered for adoption. However, if a S38 Agreement is made before construction starts, the council can ensure that it is built to the appropriate standard, and is lit and drained.
The Highway Authority (council) has no power to insist that a developer enter into a S38 Agreement. However, many developers also see it as the better option, as the adoption process can be lengthy, and if it takes place after a road is completed, the developer will be responsible for all maintenance until adoption takes place.
Once a section 38 Agreement is made, the developer will have to operate within a set of conditions, terms and timescales. It is supported by a bond or cash deposit calculated by the Highway Authority and based on the works proposed. This bond or cash deposit can be called upon if the developer goes into liquidation or otherwise defaults on their responsibilities.
What is an S278 agreement?
A section 278 agreement (or S278) is a section of the Highways Act 1980 (external link) 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, we reserve the right to take legal action against you. The grant of technical approval is not permission to commence works.
In Wigan, we normally 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 (external link).
Works on the Adopted Highway
The Works to The Adopted Highway process is an informal application for entrances where the development will remain private and do not intend to enter into a S38 Agreement and are to be adopted by the Council, also multiple dropped kerbs to a frontage of a development.
The process will not enter into a Legal Agreement like the S278. The Developer will use their own contractor, a Plan will be submitted for Technical Approval and until this is granted and checked by the Council the work will not be able to commence. Once the plan has been approved the Section 50 Licence can be applied for, the works will then be overseen by our Technical Officer.
The Works to The Adopted Highway process would only be suitable if no land is being proposed for Adoption and no permanent alterations or improvements to the public highway, as part of a planning approval are to be undertaken.
2024/25 fees for works to adopted highway approval, supervision and adoption are £2,319. Street Lighting Design Service or Layout Approval fees are £352.