Section 278 agreements and how they follow a permission

Planning permission does not give you the right to touch the public highway. A separate agreement does, and on most schemes with a new access, a junction improvement or a footway alteration, that agreement is made under section 278 of the Highways Act 1980. It is a contract with the highway authority under which you fund works to the existing highway that the authority, or a contractor working to its approval, carries out.

Developers programme it as a formality and it is not one. On a minor scheme the agreement routinely takes longer to complete than the planning application did.

What section 278 covers, and what it does not

Section 278 deals with works to highway that already exists and is already maintainable at public expense. Widening a carriageway, forming a bellmouth, relocating a crossing point, altering a junction, installing signals, changing lining and signing, moving a bus stop and constructing a footway are the common items.

Section 38 of the same Act deals with something different: the adoption of new streets built by a developer inside the site, so that they become publicly maintainable in future. Many residential schemes need both, and the two agreements have different programmes, different securities and different technical processes.

The distinction matters when you budget. A section 278 buys you works on land you do not own and cannot control. A section 38 turns land you do own into public highway.

Where the works affect the strategic road network, the agreement is with National Highways rather than with the local highway authority, and the way access to the strategic network is assessed changes the consultation route as well as the counterparty.

When the agreement becomes necessary

The trigger is usually a planning condition. A condition requiring the access to be constructed in accordance with approved drawings before first occupation cannot be discharged unless the works can lawfully be built, and they cannot be built without the agreement.

That is why so many permissions carry a condition expressed in Grampian form, requiring the agreement to be entered into before development begins or before a stated stage. The effect is to make the agreement a precondition of the permission being implementable.

Check the exact wording early, because the drafting varies in ways that change the programme. A condition that bites before development begins is materially different from one that bites before occupation. Works to be completed is different from works to be substantially complete. And a condition requiring the agreement to be completed rather than merely applied for gives you no credit for months of negotiation.

Technical approval and the design process

The design goes through the authority's technical approval process, which is separate from the planning approval of the same works. Approval of a drawing at planning stage is not approval of the engineering detail.

The sequence is broadly consistent between authorities:

1. Preliminary design submitted, with layout, levels, visibility splays and drainage
2. Road safety audit at the appropriate stage, with the designer's response to each recommendation
3. Departures from standard identified and submitted for approval where the design cannot meet the relevant geometric standards
4. Detailed design, including construction details, drainage calculations, street lighting design, signing and lining
5. Check certificates issued by an appropriately qualified checker
6. Agreement of the works cost, the fees and the security
7. Completion of the agreement and issue of a licence to work in the highway

Safety audit is where schemes change. An auditor operating independently of the designer can recommend alterations that affect the layout inside the site, and a recommendation rejected without adequate justification tends to stall the approval. Build a contingency into both the programme and the layout for it.

Street lighting, drainage connections and tree planting each bring in a separate technical team, and each can comment late. Ask at the outset which teams will need to sign off and submit to all of them together.

Bonds, fees and commuted sums

Three separate sums are involved, and only one of them is the construction cost.

Security is required to protect the authority against the developer failing to complete the works. It takes the form of a surety bond from an approved provider, a bank guarantee or a cash deposit, valued at the estimated cost of completing the works, and it is released after the maintenance period. Bond capacity is finite and arranging it takes time, so start early.

Fees cover the authority's costs: checking the design, auditing, supervising construction and inspecting on completion. They are usually expressed as a percentage of the works value, the percentage varies between authorities, and the published schedule is the place to find it rather than an estimate carried across from another scheme.

Commuted sums cover the future maintenance of anything the authority would not otherwise have to maintain, or would maintain at greater cost than the standard. Traffic signals, block paving, non-standard lighting columns, structures, planting and drainage features all attract them. Commuted sums for signals are frequently the largest single line in a highways budget on an otherwise modest scheme.

Ask for all three figures at preliminary design. Authorities will usually give an indication, and the indication is enough to test the appraisal.

Programme and the effect on occupation

The elements that set the programme are rarely the construction itself.

Permanent traffic regulation orders deserve separate attention. Waiting restrictions, a new speed limit, a one way arrangement or the stopping up of a length of highway all require statutory consultation with defined periods, and an objection can add months. If an order is needed, it is often the longest item on the highways programme and it should be started before the design is finished.

Utility diversions are the other common surprise. The lead time for a quotation followed by the undertaker's own works programme can exceed the entire construction period for the highway works, and the developer carries the cost.

Interaction with the planning conditions

Keep the highway programme and the condition discharge programme aligned, because they are administered by different teams and neither will do it for you.

Three practical measures help. Discharge the highways-related conditions on the basis of the technically approved drawings rather than the planning drawings, so the two sets do not diverge. Where a condition requires works before occupation and the programme is tight, apply to vary it under section 73 well in advance rather than seeking a retrospective fix. And record in writing what the authority has accepted as satisfying each condition.

Construction phase impacts sit alongside all of this, and temporary closures and street works during construction are managed under a different regime again, with its own notices and charges.

What causes delay, and what prevents it

The recurring causes are consistent across authorities: engaging the highway authority only after permission is granted, designing to planning drawings that were never engineered, underestimating the time for safety audit responses, discovering land outside the adopted highway boundary that must be acquired or dedicated, and leaving traffic regulation orders until last.

Four habits prevent most of it. Involve the highway authority before the planning application, so the access design submitted is one that can be approved. Commission a topographical survey extending beyond the highway boundary and confirm where the boundary actually runs. Programme the traffic regulation order from the start. And appoint a designer with recent experience of that authority, because local standards and preferences are not published in full anywhere.

Designs for internal streets that will later be adopted deserve the same early attention, and what highway officers look for in shared surface streets shapes decisions that are hard to reverse once the layout is fixed. The access strategy itself should be settled in the Transport Assessment rather than left to the engineering stage.

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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.