Section 278 Agreements – Permanent Alterations to the Highway
Section 278 Agreements are a legal agreement between a developer and the Local Highway Authority (LHA) which allows the developer to make permanent alterations to the adopted highway as part of a valid planning permission. The Section 278 Agreements are outlined within the Highways Act 1980. The Section 278 Agreement process ensures that all works are designed and constructed to the satisfaction of the Highway Authority.
S278 Agreement Pre-application
The S278 Agreement process is initiated following a valid planning approval. Therefore, a key precursor to the Section 278 agreements are a negotiation with the LHA at the preliminary design stage in order to agree the design and scope of the proposed highway works. This element of the process ensures that the proposed highway designs integrate into the existing highway environment in a safe manner, and with consideration for all road users. The planning permission will often include conditions which state that the highway works must be delivered as per the proposed preliminary highway designs, subject to a suitable detailed review of the proposed designs.
Applying for a Section 278 Agreement
Following a valid planning approval, preparation of a detailed design package of the proposed highway works should be undertaken. This package is often itemised as per the Standards for Highways “Manual of Contract Documents for Highway Works” (MCHW), with some of the common series listed below:
- Series 000 – Introduction, Location Plan, Agreement areas
- Series 100 – Setting Out
- Series 200 – Site Clearance
- Series 400 – Road Restraint Systems, Vehicle & Pedestrian
- Series 500 – Drainage & ducting
- Series 600 – Earthworks
- Series 700 – Road Pavements
- Series 1100 – Kerbs, Footways, Cycleways and Paved Areas
- Series 1200 – Road Signs, Road Markings, Traffic Signals
- Series 1300 – Street Lighting
The design package should be submitted to the relevant officer at the LHA, who will undertake a detailed check of the detailed designs. Amendments may be requested by the LHA, and following these, technical approval will be issued, which confirms the proposals are in line with expectations, and that the Section 278 Agreement can progress further.
In order to allow the Section 278 Agreement to progress to the legal agreement, various pieces of information will be required to be provided to the LHA. These include, but are not limited to:
- Drainage reports or calculations
- Swept Path Analysis (vehicle tracking)
- Confirmation of correspondence with utility companies
- Long and Cross Sections of proposed works
- Road Safety Audits
- Traffic Counts
- Traffic Management details
A Bill of Quantities (BoQ) will be requested by the LHA which includes a fully costed estimate for the proposed highway works.
Once all information has been received and approved by the LHA, the LHA legal team will produce the Section 278 agreement and forward this through to the developers solicitors. Once the document has been signed by all parties, it will permit the works to be undertaken on site.
Following receipt of the signed Section 278 Agreement, construction pre-start information will need to be provided to the LHA, including; RAMS (Risk and Method Statement), Traffic Management proposals, Section 50 licences (see Section 50 Agreement – Placing Apparatus in the Highway), Pre-construction condition surveys and any associated fees and bonds.
Both during and following construction, the construction works will be inspected by LHA highway officers to ensure that the construction is satisfactory, safe and in-line with the detailed design package. It is only following satisfactory construction of the works that the LHA will begin maintenance of the altered highway, and that the bond paid as part of the Section 278 Agreement will be returned to the developer.
Carriageway widening works on approach to a signal junction approaching completion.
Section 278 Agreement Costs
There are a number of costs associated with a Section 278 Agreement, and these vary for each LHA. Generally, a Legal cost of £1,000 will be charged by the LHA legal team in order for the Section 278 Agreement documents to be compiled. An inspection fee will be charged by the LHA, which is generally between 7-10% of the total scheme cost as outlined in the BoQ.
A surety bond will also need to be provided. The bond protects the LHA if the developer for whatever reason cannot complete the works, such as bankruptcy. For this reason, the bond provided to the LHA is usually between 100% – 150% of the total scheme cost as outlined in the BoQ, and would allow the LHA to undertake the works themselves if works cannot be completed. The bond is returned on satisfactory completion of the highway works, with some of the bond withheld until the maintenance period of up to 12 months has expired with no issues regarding the construction.
Minor Works Agreements
Depending on the size of the works, the Section 278 Agreement may qualify as a Minor Works Agreement (MWA). Thresholds vary by LHA as to whether a scheme qualifies as Minor Works, although a total works value of under £20,000 is a general rule of thumb.
If a scheme is considered Minor Works, the MWA is a slightly less onerous process. The application fees are required to be provided up front, and are often around £3,000. Following the receipt of the relevant pre-start information, the MWA follows a similar process to that of the Section 278 Agreement, with a bond for the full cost of the works required to protect the LHA from developer insolvency. The bond is returned following satisfactory completion of the works.
Assisting with the Section 278 Agreement Process
If you would like any assistance with any stage of the Section 278 Agreement process, including production of preliminary or detailed design packages, process management or assistance liaising with LHAs, book a free consultation or call us today.
