The section 278 process and its effect on programme

The usual reason a section 278 agreement delays a development is not the construction. It is that nobody started the technical approval process until after planning permission was granted, and the highway authority then took a design review cycle, a legal drafting cycle and a utility diversion lead time to work through, in sequence, while the site sat idle.

Almost all of that can run in parallel with the planning application. Very little of it does.

What triggers the agreement

A section 278 agreement under the Highways Act 1980 is needed whenever a developer carries out works on the existing public highway. A new access, a junction improvement, a crossing, footway widening, a bus stop relocation, a change to kerb lines or a new drainage connection all count.

The obligation to enter into one usually comes from a planning condition or a section 106 obligation. Read the wording carefully at the decision stage, because the two common forms behave very differently. A condition requiring the works to be completed before occupation gives a long runway. A condition requiring the agreement to be entered into before any development starts stops the site on day one.

Where the access is onto the strategic road network the counterparty changes, and so does the process. Our note on access to the strategic road network sets out how that differs.

Technical approval and the design stages

Technical approval is the authority's formal check of the developer's design against its own standards. It normally covers geometry, drainage, lighting, signing and markings, materials, structures where present, and departures from standard.

The sequence is iterative. The designer submits, the authority comments, the designer revises, the authority checks again. Each cycle takes as long as the authority's workload allows, and a design containing departures from standard adds an approval step of its own because departures are usually decided at a higher level within the authority.

Three things shorten this. Submitting a complete package first time, including drainage calculations and lighting design rather than promising them later. Holding a pre-submission meeting so the authority's expectations are known before drawings are produced. And appointing a designer who has worked with that authority before and knows its standard details.

Structures are the item that most often drags. A retaining wall, a culvert extension or a bridge parapet alteration needs an approval in principle before detailed design is even checked, and that is a separate submission with its own timetable.

The legal agreement running alongside

The agreement itself is drafted by the authority's legal team, usually from a standard form. Instructing solicitors on both sides, agreeing the works schedule as a contractual annex, fixing the bond amount, resolving the commuted sum calculation and completing the document all take time that runs concurrently with technical approval but finishes after it, because the works schedule cannot be final until the design is.

Start the legal instruction at the same time as the technical submission rather than after it. The single most useful thing a developer can do is ask, at pre-application stage, for the authority's standard agreement, its fee schedule, its commuted sums policy and its bond requirements, and then hand all four to their solicitor.

Where a section 38 agreement for adoption of internal roads is also needed, negotiate both together. They share evidence, they share a bond conversation and they are usually completed by the same legal team.

Road safety audits at each stage

Road safety audits are carried out by a team independent of the designer, at defined 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 monitoring stage follows after the scheme has been in use.

Each audit produces recommendations, and each recommendation produces a designer response that the authority reviews. A stage 1 audit that questions a visibility splay or a crossing position can send the design back several weeks, which is exactly why it should happen early rather than being bundled with stage 2 to save a fee.

Book the audit team in advance. Independent auditors with the required experience are not always available at short notice, and a scheme waiting for a stage 3 audit cannot open.

Traffic regulation orders and road space

Traffic regulation orders run on their own statutory timetable and that timetable does not compress. A new waiting restriction, a revised speed limit, a loading bay, a bus stop clearway or a one-way change each need an order made under the Road Traffic Regulation Act 1984, with design, consultation, formal advertisement, an objection period, consideration of objections and then the making and sealing of the order.

Objections are the risk. A handful of residents opposing a change to parking can push an order to a committee decision, and a committee that defers adds a cycle.

Separately, the physical works need road space. Street works are coordinated under the New Roads and Street Works Act 1991 and, in permit scheme areas, under the Traffic Management Act 2004. Permits must be applied for, dates booked and conditions accepted, and authorities operate embargo periods on busy routes, typically over the pre-Christmas trading period and during major local events. Lane rental charges apply on some routes and are a strong incentive to get the programme right first time. The practicalities of closures and diversions are covered in our note on temporary road closures and street works.

A realistic programme and where it slips

The following is illustrative rather than a quotation for any particular authority or scheme.

For a single new junction with associated footway and drainage, allow for a pre-application discussion, then a technical approval process running over several design and comment cycles, a legal drafting process starting at the same time and completing after the design is fixed, statutory undertaker enquiries moving from budget estimate to detailed quotation to booked works, a traffic regulation order process running in parallel where restrictions change, and only then construction.

The three items that slip most often are utility diversions, where lead times are set by the undertaker and not by you. Traffic regulation orders, where objections add a decision cycle. And seasonal constraints, because surfacing cannot be laid in frost and authorities restrict work on busy routes at certain times of year.

Build float against those three specifically rather than spreading a flat contingency across the whole programme.

Sequencing against the planning condition

Work backwards from the condition. If occupation is the trigger, the works must be complete and certified before the first completion, so count back through the maintenance arrangements, stage 3 audit, construction, permit booking, utility diversions, legal completion and technical approval to find the date the design has to start. That date is usually before the planning decision.

Three practical moves help.

1. Begin technical approval during the determination period, using the layout submitted with the application.
2. Ask for the condition to be worded so the agreement must be entered into before occupation rather than before works start, where the works do not affect construction access.
3. Where phasing allows, agree that the works are triggered by a stated number of occupations rather than the first.

The transport evidence submitted with the application sets the scope of everything that follows, so get the Transport Assessment right and keep its assumptions consistent with the section 278 design. Construction access and routing belong in the Construction Traffic Management Plan, which the same highway officer will review.

This is general guidance, not legal advice; check the position with your local planning authority, the highway authority or a qualified professional before relying on it.

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