Section 278 agreements: scope, cost and timing

A section 278 agreement is the contract under which a developer pays for and carries out works to an existing public highway. It sits under section 278 of the Highways Act 1980, it is made with the highway authority, and it exists because you cannot simply build a new junction into a road you do not own. On most schemes of any size it is the item that quietly sets the date you can start on site.

Treat it as a twelve month process running in parallel with planning, not as a piece of paperwork after consent.

What section 278 covers and where section 38 starts

Section 278 deals with works to highway that already exists. A new priority junction, a signalised access, a right turn lane, a footway widening, a crossing, a bus stop relocation, a speed limit change with associated signing.

Section 38 of the same Act deals with something different: the adoption of new streets built by a developer, so that they become publicly maintainable at public expense. Estate roads inside a housing site go through section 38.

Most residential schemes need both. The access junction and any off-site works are section 278 works, the internal roads are section 38 works, and the two agreements are often drafted together with a common bond and a common technical approval process.

One consequence worth knowing early. Once works are on adopted highway, the authority controls the specification, the inspection regime and the timetable, and the developer's normal commercial levers do not apply.

Technical approval and the design process

The planning drawing showing an access is a general arrangement, not a construction design. Technical approval turns one into the other.

The submission usually includes detailed engineering drawings, levels, drainage design and connection details, street lighting design with calculations, signing and lining, construction details and a materials specification, swept path analysis for the relevant design vehicle, visibility splay demonstration and a road safety audit.

Road safety audits run in stages. A stage 1 audit examines the preliminary design, a stage 2 audit the detailed design, a stage 3 audit the completed works before opening, and a stage 4 monitoring exercise afterwards. Each audit produces recommendations, and the designer responds to each one with acceptance or a reasoned exception. Audit findings that require redesign are among the commonest causes of programme slip, because they arrive after the design was thought finished.

Allow for iteration. A first technical submission rarely gets approved without comment, and each round with a highway authority typically takes several weeks.

Bonds, fees and commuted sums

The money attached to a section 278 agreement usually comes in four parts.

Bond levels are set by the authority, typically as a percentage uplift on the estimated works cost to allow for inflation and for the cost of another contractor taking over. Commuted sums attach to non-standard items: traffic signals, structures, tree pits, block paving, sustainable drainage features and anything with a maintenance liability beyond plain carriageway.

Ask for the authority's published fee and commuted sum schedules at the start. The figures vary considerably between authorities and they are usually set out in a fees document rather than negotiated case by case.

Budget for legal costs on both sides, since the developer pays the authority's legal fees as well as its own.

Conditions that require the agreement first

Planning permissions routinely carry conditions tying the highway works to the development. Two patterns dominate.

A condition preventing commencement until the agreement has been entered into, which front-loads the programme and is the version developers dislike. And a condition preventing occupation until the works are complete and open to traffic, which allows construction to proceed while the agreement is settled.

Both are lawful, including where the works are on land the applicant does not control, because a condition can be drafted so that it prevents development until something happens elsewhere. What matters commercially is which one you get, so it is worth discussing the wording with the case officer and the highway officer before the report is written rather than after.

Watch for conditions requiring works to be complete before first occupation of any dwelling on a phased site. On a 200 home scheme that can mean building a junction before a single sale.

Where the access affects the strategic road network rather than a local road, the process runs through the network operator instead, and the policy on strategic road network access applies alongside the agreement mechanics.

Programme and the usual causes of delay

An illustrative sequence for a medium sized residential scheme runs roughly like this. Technical approval submission at month one. Comments and a second submission by month four. Approval and stage 2 audit by month six. Legal drafting running alongside from month three, completed by month eight. Utility diversions ordered at month four with quotations and programme returned over the following months. Works on site from month nine or ten. Treat those as illustrative figures, because every authority runs at a different pace.

The delays that recur are predictable.

• Statutory undertaker diversions. Quotations for moving gas, water, electricity and telecoms take months, and the works themselves need their own road space.
• Land outside the highway boundary. If the visibility splay or the works footprint crosses third party land, you need an interest in it, and that negotiation has its own timescale.
• Drainage. Connecting highway drainage to an existing system needs the agreement of whoever owns it, and highway authorities are reluctant to accept surface water from private land.
• Road space booking and embargoes. Authorities restrict works during peak retail periods and at other sensitive times, and a missed window can push works by months.
• Audit findings requiring redesign after the layout was fixed.

Managing the traffic side of construction is its own exercise, and temporary road closures and street works during construction need booking well ahead of the date you want them.

What to do at planning stage to protect the programme

Three moves make the difference, and all of them happen before consent.

First, design the access properly for the planning submission. A general arrangement drawn to the correct standards, with visibility splays achievable within land you control and swept paths tested for a refuse vehicle, avoids the redesign that otherwise appears at technical approval. The Transport Assessment is where the junction capacity and safety case is made, and the drawing behind it should be one the engineer can develop rather than one that has to be replaced.

Second, open the conversation with the highway authority's development management team during pre-application, and ask specifically about fee scales, bond percentages, commuted sums and current technical approval timescales.

Third, order utility enquiries early. Records requests and budget estimates cost little and tell you whether a diversion is lurking under the proposed junction.

The design detail that highway officers care about on the internal layout is a separate discussion again, and what they expect from shared surface streets rarely matches what a masterplanner draws first.

Browse the PlanScope report types to see which transport 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.