Section 278 agreement: works to the public highway
Planning permission gives you no right to dig up the road. A section 278 agreement under the Highways Act 1980 does, and it carries its own design approval, bond and fee regime.
A section 278 agreement is the contract that lets a developer pay for and build works to an existing public highway: a widened access, a right-turn lane, a new footway, a signalised junction, a set of traffic calming features. The power sits in section 278 of the Highways Act 1980, and the agreement is made with the local highway authority, or with National Highways where the works touch the strategic road network. Planning permission gives you no right whatsoever to dig up the road. The agreement does.
For a scheme of 40 or 50 units, this is usually the single item most likely to slip. Budget for it early.
What the agreement authorises
Section 278 allows a highway authority to enter into an agreement with any person under which that person pays for highway works the authority is satisfied will benefit the public. In practice the authority designs or approves the design, you fund the whole cost, a contractor approved by the authority builds it, and the completed works remain public highway maintainable at public expense.
The scope covers anything within the adopted highway boundary. That includes the carriageway, the footway, verges, street lighting columns, drainage gullies, signing, lining, traffic signals and crossing points. Works on your own land sit outside the agreement, even when they connect to it.
Two neighbouring powers are worth separating out. A simple domestic vehicle crossing over a footway is normally handled under section 184 of the same Act, where the authority does the work itself and charges you. Placing private apparatus in the street, such as a service duct, needs a licence under section 50 of the New Roads and Street Works Act 1991. Neither of those is a section 278.
Why a planning condition is not enough on its own
Planning officers routinely attach a condition requiring the access to be constructed in accordance with an approved drawing before first occupation. That condition binds you. It does not bind the highway authority, and it confers no power to work in the public highway.
The two consents also test different things. The planning condition asks whether the access is acceptable in land use and amenity terms. The technical approval process asks whether the construction detail, the drainage, the visibility splays, the surfacing build-up and the road markings meet the authority's standards. A layout that satisfied the case officer can still fail at technical approval, and the drawing then has to change.
Where the change is small, a section 96A non-material amendment can bring the planning drawings back into line. Where the geometry moves materially, you are looking at a section 73 application and a fresh consultation with the highway authority. Either way the fix takes weeks, not days.
Technical approval and the design stages
Most authorities run a staged process, and most publish the stages on their own website. The sequence below is the common shape rather than a universal rule, so check what your authority actually requires before you programme it.
- Pre-agreement enquiry, where the authority confirms in principle that it will enter into an agreement and quotes its fees.
- Preliminary design, showing geometry, visibility splays, levels and the extent of the works.
- Stage 1 road safety audit on the preliminary design, with a designer's response to every problem raised.
- Detailed design and technical approval of the construction details, drainage calculations, structures, lighting and signals.
- Stage 2 road safety audit, often combined with stage 1 on small schemes.
- Execution of the agreement, payment of fees and lodging of the bond.
- Construction under the authority's supervision, then a stage 3 audit on completion.
The road safety audit process is set out in GG 119 of the Design Manual for Roads and Bridges. It is mandatory on the strategic road network and adopted by most local highway authorities for section 278 works of any scale. Auditors are independent of the designer, which is the point of them, and their recommendations often cost money to resolve.
Bonds, fees and commuted sums
Three separate payments usually sit inside a section 278 package, and developers regularly budget for only one.
The authority's fees cover checking the design and supervising the construction. They are normally set as a percentage of the estimated works value under a published schedule that the authority reviews, so take the current figure from the authority rather than from a previous scheme.
The bond is a surety bond or cash deposit sized to the estimated cost of completing the works. If you go insolvent or walk away halfway through, the authority calls on the bond and finishes the job. It is released after the works are certified complete, sometimes after a maintenance period.
A commuted sum is a one-off payment towards the future maintenance of assets the authority would not otherwise have to maintain. Traffic signals, structures, non-standard paving, tree pits and trapped gullies all attract them. Rates vary between authorities and each publishes its own basis, so ask for the calculation in writing at the pre-agreement stage and treat anything quoted verbally as provisional.
There is a fourth cost that rarely appears on the first budget: the diversion or protection of statutory undertakers' apparatus. Gas, water, electricity and telecoms plant sitting under the footway you are about to rebuild has to be moved or protected, and the undertaker sets that price. Those quotations take time on their own.
The programme most schemes run to
Assume the section 278 route runs in parallel with, and usually longer than, the discharge of your planning conditions. The enquiry and preliminary design can start before permission is granted, and on a constrained access that is the sensible thing to do.
The parts that consume time are the audit response cycles, the statutory undertaker enquiries and the legal drafting of the agreement itself. Authority legal teams are small and the queue is real. Where the agreement has to be signed before you may start any development on site, that queue sits directly on your critical path.
Illustrative example: a 45-unit site with a new priority junction onto a classified road. The developer submits a preliminary design in week one, receives the stage 1 audit in week six, resolves two visibility issues by week ten, obtains technical approval at week eighteen and signs the agreement at week twenty-four, having lodged the bond the week before. Nothing in that sequence went wrong. It simply took the time it takes. Treat the figures as illustrative only.
Where a section 38 agreement comes in as well
Section 38 of the Highways Act 1980 covers the adoption of new streets that you build on your own land, so that the authority takes them over as public highway. Section 278 covers works to highway that is already public. Larger residential schemes need both, and they are usually drafted as a single combined agreement.
The practical difference is what happens at the end. Section 278 works become highway on completion and certification. Section 38 streets go through a maintenance period during which you remain responsible for defects, and adoption follows only when the authority is satisfied. Your bond release dates differ accordingly, and the obligation appears as a local land charge against the site.
Outline consents complicate this further, because the access detail is often a reserved matter. If access is reserved rather than approved at outline stage, the technical work cannot properly start until the reserved matters submission fixes the geometry.
What usually causes delay on smaller schemes
Undersized visibility splays that rely on land outside the applicant's control. The designer draws the splay across a neighbour's frontage, the authority asks for evidence of control, and there is none.
Drainage is the second recurring problem. Surface water from a new access cannot simply be discharged into the existing highway drain without the authority agreeing the connection and the capacity, and on rural sites there may be no positive drainage system at all.
Then there is the wrong contractor. Authorities maintain approved lists and require specific accreditations for works in the highway, and a general groundworks firm without them cannot execute the works whatever your programme says.
And one that catches smaller developers repeatedly: assuming the commuted sum is negotiable. It is calculated from a published methodology. Argue about the asset schedule by all means, but the rate itself is rarely up for discussion.
None of this stops a scheme. It does determine whether the access is finished in time for first occupation, which is the date your funder cares about. Getting the transport evidence right at application stage helps, because a well-scoped Transport Assessment and a realistic Construction Traffic Management Plan reduce the number of surprises the highway engineer raises later.
Enter your postcode on PlanScope to see which transport and highways reports your site is likely to need before you approach the highway authority.
This is general guidance rather than legal advice. Check the position with your local planning authority, the highway authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Do I need a section 278 agreement for a single new driveway?
Usually not. A domestic vehicle crossing over a footway is normally dealt with under section 184 of the Highways Act 1980, where the highway authority carries out the work itself and charges you for it. A section 278 agreement is for larger works such as junctions, widening, footway construction or signals, where you fund and build the works to the authority's approved design.
Can I start the section 278 process before planning permission is granted?
Yes, and on a constrained access it is sensible. Most highway authorities will accept a pre-agreement enquiry and a preliminary design before a decision is issued. The authority will not execute the agreement until the permission exists, but the design review, the stage 1 road safety audit and the statutory undertaker enquiries can all run in parallel.
What is the difference between a section 278 and a section 38 agreement?
Section 278 covers works to highway that is already public, such as altering an existing junction. Section 38 covers the adoption of new streets you build on your own land, so the authority takes them over later. Large residential schemes often need both, usually drafted as one combined agreement with different completion and bond release dates.
Is the bond refundable?
The bond is released once the works are certified complete, in some cases after a maintenance period set out in the agreement. It is a surety against your failure to finish, not a fee. If the works are completed and certified, the security falls away. Check the release trigger in the drafting, because it varies between highway authorities.
Who decides the commuted sum?
The highway authority, using its own published methodology and asset rates. The schedule of assets attracting a sum is open to discussion, so it is worth checking whether every item listed really needs a maintenance contribution. The underlying rates themselves are rarely negotiable. Ask for the calculation in writing at the pre-agreement stage rather than after design approval.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.