Section 278 agreements and what they commit you to
Section 278 of the Highways Act 1980 is how works to the existing public highway get delivered at a developer's cost. The fees and the programme usually bite harder than the construction.
A section 278 agreement highways arrangement is the mechanism by which a developer pays for and delivers works to a road that somebody else owns and maintains. Section 278 of the Highways Act 1980 lets a highway authority agree with any person that works to the existing highway will be carried out at that person's expense, where the authority is satisfied the works will benefit the public. New access, a widened bellmouth, a signalised junction, a pedestrian crossing, a footway extension and a bus stop relocation all sit here.
What developers underestimate is not the construction. It is the technical approval, the fees, the bond and the traffic regulation order, which together decide when you can open the site.
What section 278 covers
The test in the section is public benefit, not private convenience. An authority can decline to enter an agreement, and it can require works it considers necessary rather than the minimum you have drawn. Works commonly caught include:
- A new or altered vehicular access across the footway
- Junction improvements, signals and signal timing changes
- Footway and cycleway construction or widening
- Pedestrian crossings, refuges and tactile paving
- Bus stops, laybys and shelters
- Lining, signing and street lighting changes
- Drainage connections and gully alterations within the highway
The agreement describes the works, the standards they must meet, who builds them, who inspects them, what happens if they are defective and how the money moves. It is a contract, and the balance of risk in it is set by the authority's standard form rather than negotiated line by line.
Who the agreement is with
The counterparty is the highway authority for that specific road, and on a single site there can be more than one. County and unitary councils are the authority for most local roads. In London, Transport for London is the authority for the Transport for London Road Network while boroughs hold the rest. National Highways is the authority for the strategic road network, where the Department for Transport circular on the strategic road network and sustainable development sets out how it engages with planning.
Check the status of the road at the outset using the authority's list of streets, because the unadopted lane that looks like a public highway may be nothing of the kind. Works to a private street need the owner's consent instead, which is a different problem with fewer rules and more bargaining power on the other side.
Where the access affects the strategic network, National Highways becomes a statutory consultee on the planning application and may issue a holding direction. That changes the sequence: resolve the principle with them before the application is determined, because a design they have not seen is a design they will ask to see again.
Technical approval, audits and fees
Approval of the design is a process in its own right. The authority checks the drawings against its own standards and the relevant national design documents, and departures from standard need a formal departure application with a justification.
Road safety audits run alongside, usually at the design stage and again after construction, carried out by an audit team independent of the designer. An audit recommendation that the authority accepts becomes a design change, and recommendations late in the process are the usual cause of redesign. Build that risk into the programme rather than assuming the first drawing is the last.
Fees are set locally, published by each authority, and typically expressed as a percentage of the estimated works value covering design checking, supervision and inspection. There is no national schedule, so get the figure in writing early and confirm whether it is payable on signature or in stages. Where the works are modelled in the Transport Assessment, keep the drawings in the planning application and the drawings in the technical submission aligned, because divergence between them is a common source of argument at the discharge of conditions stage.
Bonds, securities and commuted sums
Three financial instruments turn up in most agreements.
A bond or other surety covers the authority's cost of completing or correcting the works if the developer fails. The amount is based on the estimated works cost and the authority's own policy.
Commuted sums cover future maintenance of anything the authority would not otherwise have to maintain: special paving, street trees, planters, drainage features, retaining structures, signals above the standard specification. They are calculated over an assumed maintenance period, and they are avoidable. Specify standard materials and standard details and the sums shrink.
Inspection and supervision fees are the third, and they are usually payable upfront.
One practical point on cost. The works estimate used for the fee and the bond is made before detailed design, so it is wrong. Agree the mechanism for adjusting both when the tender comes in, rather than discovering that the bond was sized on an estimate from two years earlier.
Programme, and the effect on the build
The step that most often delays a site is a traffic regulation order. A change to waiting restrictions, a new bus lane, a lower speed limit or a one-way order all require the statutory process, including advertisement, consultation and consideration of objections. Objections can be fatal, and they arrive from residents who were not consulted on the planning application.
Other programme items worth sequencing early:
- Status check on the road and confirmation of the authority.
- Statutory undertaker enquiries and diversion quotations, which have long lead times.
- Technical approval and departures.
- Stage 1 safety audit and design response.
- Legal agreement and bond.
- Any traffic regulation order.
- Street works coordination and permits under the New Roads and Street Works Act 1991 regime.
- Construction, with seasonal embargoes and any lane rental charges allowed for.
Site traffic during construction is a related but separate matter, dealt with through a Construction Traffic Management Plan and the authority's permit scheme.
How it interacts with planning conditions
Conditions and agreements do different jobs. A planning condition cannot require an applicant to enter into a section 278 agreement, because a positive obligation of that kind is outside what a condition can lawfully do. What the condition does instead is prohibit something until the works are complete, in the familiar negative form, so that no more than a stated number of dwellings may be occupied until the access has been built to the approved drawings.
That leaves the agreement as the only route to delivering the works, which is why the distinction feels academic on site. It is not academic when you come to vary the condition, or when the authority asks for something different after permission, because the condition and the agreement then have to be adjusted separately. Our note on discharging the condition explains that process.
Where access is reserved on an outline permission, the highway works are usually fixed at the reserved matters stage, and the section 278 follows. Where access is approved at outline, it is fixed earlier and harder to change.
Section 38 as the companion route
Most residential schemes need both. Section 278 for the works where the site meets the existing highway, and section 38 for the estate roads to be adopted inside the site. The two are often executed as a single document, which hides the different risk profile.
Section 38 brings a bond covering the estate roads until they are certified, a maintenance period before final adoption, and a specification that the authority will hold you to for years. Design for adoption from the first layout, because retrofitting adoptable geometry into an approved layout means losing plots.
Some developers choose not to offer roads for adoption, keeping them private with a management company. That removes the section 38 bond and adds a long-term service charge and a question from every purchaser's conveyancer. It is a commercial decision, and it should be taken before the layout is drawn rather than after the first refusal of technical approval.
Enter your postcode on PlanScope to see which transport and highways documents your scheme is likely to need.
This is general guidance, not legal advice; check the position with your local planning 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
What is the difference between section 278 and section 38?
Section 278 of the Highways Act 1980 covers works to the existing public highway, such as a new junction, a footway crossing or a signal alteration, carried out at the developer's expense. Section 38 is the agreement under which new streets inside a development are built to standard and then adopted as highway maintainable at public expense.
Can a planning condition force me into a section 278 agreement?
A condition cannot require you to enter into an agreement, because that is an obligation rather than a restriction on the use of land. What a condition can do is prevent occupation, or the start of works, until specified highway works are complete, which leaves the agreement as the only practical way to deliver them. The effect is the same.
Who carries out the works?
The agreement says. Some authorities execute the works themselves and recover the cost, which removes your control over programme. More commonly the developer's contractor builds them under the authority's supervision, to approved drawings, with inspection at agreed hold points. Confirm which model applies before you price the works and the preliminaries.
What is a commuted sum for?
It covers the extra cost to the authority of maintaining something non-standard in the highway, such as decorative paving, street trees, drainage features or a structure. The sum is calculated over an assumed maintenance period and is usually payable before the works are certified. Specifying standard materials is the simplest way to avoid it.
How long does a section 278 take to put in place?
Allow for design, technical approval, safety audit, legal drafting and the bond, and then for any traffic regulation order. Each stage depends on the authority's resources rather than on a statutory clock, and the regulation order process alone involves statutory consultation and can attract objections. Start it in parallel with the planning application, not after permission.
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.