Section 278 – A Quick Guide for Development Projects

What is Section 278 Agreement ?

Section 278 of the UK Highway Act 1980 is a legal provision that allows developers to enter into agreements with the relevant highway authority (usually the local council) to make alterations or improvements to the existing public highway infrastructure.

The purpose of Section 278 agreements is to ensure that any changes to the highway infrastructure caused by a development project are carried out in a safe and appropriate manner, and that they are completed to the satisfaction of the highway authority.

Section 278 agreements typically cover a range of matters, including the design, construction, and maintenance of new or altered highways, the provision of street lighting, traffic signals, and road markings, as well as the management of traffic during construction works.

The developer is usually responsible for covering the costs associated with the works, and the highway authority may require the developer to provide financial guarantees to cover the cost of any necessary remedial works in case of defects or failures.

Section 278 agreements are often a key component of the planning process for new developments, and they are typically negotiated between the developer and the highway authority prior to the grant of planning permission. They help to ensure that development projects are integrated into the existing highway network in a way that maximizes safety, accessibility, and efficiency for all road users. The legislation can be found here

Understanding Section 278 process

Clause 1 of Section 278 of the Highway Act 1980 made provision on the means for a highway authority to enter an agreement with any persons for the execution of works that impacts the existing highway.

‘A highway authority may, if they are satisfied it will be of benefit to the public, enter into an agreement with any person—

(a)for the execution by the authority of any works which the authority are or may be authorised to execute, or

(b)for the execution by the authority of such works incorporating particular modifications, additions or features, or at a particular time or in a particular manner, on terms that that person pays the whole or such part of the cost of the works as may be specified in or determined in accordance with the agreement.’

The process varies depending on the highway authority, in some cases this is subject to the type and scale of the works. Some highway authorities have both a Section 278 minor works agreement and a Section 278 major work agreement. A project is usually designated for a major works agreement due to the following reasons :

Estimated construction value exceeds a predetermined figure usually estimated at £20,000
Land ownership transfer.
Major highway works, such as new access road, junction and traffic signals

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The potential Section 278 works would have had an initial review by the highway authority during the planning stage prior to the developer receiving planning approval for the development. The design requirement for a detailed review is conditioned as part of that approval.

A detailed review of the design is undertaken prior to the highway authority granting technical approval which discharges the relevant condition(s) prior to signing the agreement with the local authority. Once costs have been established and agreed the Council’s legal services team and the legal agreement process can commence

The Section 278 agreement is prepared by the Local Highway Authority’s solicitor and issued to the developer’s solicitor for review. The details of the agreement are then agreed before the final is completed and signed by both parties before the commencement of any work on site.

Following signing of the agreement, construction works cannot start until the pre-start requirements from the planning authority has been provided and accepted. This usually takes the form of insurances, bonds and necessary construction phase documents such as NRWSA Notices, RAMS, Programme, Traffic management, permits, condition survey, Traffic Regulation Orders and permits etc

Following construction, the works is inspected by the highway authority for acceptance prior to commencement of a maintenance period before final inspection. Any snags or non-conformance identified during inspection needs to be resolved before the council accepts the work into the maintenance period and after the maintenance period or adoption if the developer also applied for a section 38. Refer to the links below for the Section 278 and section 38 adoption pages London boroughs and its surrounding counties.

Section 278 Design requirements

The design for Section 278 works is not different to standard highway design. There is a requirement to follow the highway authority’s standard construction details and to provide certain drawings to specific requirements in support of the legal agreement.

SANDS Highway Engineers help developers prepare suitable highway designs in accordance to design standards, utilising local highway authority standard construction details and introducing innovative solutions to complex issues towards gaining technical approval.

Certain designs are a given however the level of detail is subject to the scope and complexity of the proposed works. For large scale / major Section 278 works, the proposed works are undertaken over two stages preliminary and detailed design. The typical design drawings requested are as per the Manual of Contract Documents(MCHW) for Highway Works itemised series. Below are some other information that may be required in support of the technical design drawings:

Swept path analysis
Visibility splay checks
Drainage report
Geotechnical Design Report
Statutory authority diversion details if required
EA or Ordinary water course consent if discharging or working with 8m of a water body
Vertical & horizontal alignment drawings including contour and cross sections plans
Road safety audits
Traffic and Collision data
Location Plan to a large scale
Application Site Plan showing the extent of the works within the limits of the adopted highway boundary (Red Boundary) & Land Plan
Bill of Quantities

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How much do Section 278 agreement cost?

It is important to stress that section 278 is a financial provision, it does not provide the provision which deals with the making of highway works per se. The agreement means that the authority may enter into an agreement with any person to execute any of the works on terms that the person pays the whole or such part of the cost of the works.

It is a fundamental principle of all Section 278 agreements that the developer must bear the full cost of administering the process, designing and implementing the works. The administration fees is expressed as a percentage of the estimated construction work costs usually between 7-12% subject to complexity of the project.

It should be noted that some highway authorities offer minor works section 278 agreement which is charged at a flat fee. The cost can be estimated to be approximately £2,500 per agreement or more for small projects and a percentage application on total construction cost on larger projects. The cost is taken upfront to cover preliminary design work and also any abortive costs should the agreement not be completed.

Section 278 and Section 38 Agreements

Section 278 commonly goes hand in hand with Section 38 of the highway act 1980. Section 38 agreements (or S38) are often entered into alongside Section 278 agreements when a developer proposes to construct a new road for residential, industrial or general purpose traffic that may be offered to the council for adoption as a highway maintained at the public expense. The objective of a section 38 agreement is to ensure that incoming occupiers are provided with suitable estate roads. The key difference for both acts is that Section 278 is work under existing highways while section 38 is for highway works on private land to be constructed to highway authority standards and adopted.

Common issues with Section 278 Application

Developer underestimating the programme requirements for Section 278 design approval
Developer’s agents not following planning/highway authorities’ guidance notes
Inadequate supervision during construction leading to excessive snagging
Issues associated with Bonds, insurance and agreement of commuted sums for future maintenance

There are few highway authorities with a dedicated Section 278 or Section 38( highway adoption) web page on their website which includes section 278 guidance and process documents. The links below leads to dedicated S278 guidance or highway adoption pages of London councils and surrounding county councils. You can request the S278 & S38 guidance and approval process from the planning authority during the planning process. We will update links as we receive the process documents from the planning and highway authorities.

Contact SANDS engineers to provide you a detailed assessment of the design requirements for your project.