Most buildings-related highways issues either require an agreement with, or a licence from, the highway authority. Issues requiring an agreement usually fall into one of the following categories:
- Adoption of new highways built as part of a development – section 38 agreements.
- Changes to existing highways at the cost of the developer – section 278 agreements.
- Vehicle crossover & permanent access works – section 184 agreements.
- Planning Obligation – section 106
Agreements are negotiated with the highway authority for each site on an individual basis and can take some time to arrange. Fees are charged and will vary with each site. The fee may include a commuted sum to provide for future maintenance.
Once a new highway has been adopted, the highway authority is required to maintain it in perpetuity at the public expense. For this reason, the highway authority will apply strict specification criteria to any new highway and will usually impose an inspection regime similar to that used by building control. Sampling of materials may also be required.
The highway authority will normally only accept the finished highway once it is completely satisfied with its layout, facilities (such as drainage, street lighting, roads signs, etc.), and the materials used. Many highway authorities provide information showing approved or preferred layouts and construction details for new highways built as part of developments.
There are any number of legal agreements involved in the highways aspect of development projects. The main ones a developer is likely to encounter are:
S38 (Adoption of the streets within a development by the local highways authority)
Section 38 of the Highways Act 1980 provides that when planning consent has been granted for a new development, developers may ask the highway authority to ‘adopt’ new roads that have been constructed as part of the development, along with associated infrastructure such as drains, lighting and supporting structures.
Adoption means the highway authority agrees to undertake maintenance of the road from an agreed date at the public expense. The agreement between the highway authority and the developer is called a Section 38 Agreement.
The highway authority will be either the Secretary of State for Transport or the local highway authority.
Before entering into an agreement, the developer must have obtained planning permission, including approval of any reserved matters. The planning permission will generally include an indicative layout of the roads to be adopted.
- The Section 38 Agreement may contain:
- Details of the relevant planning permission.
- Drawings indicating the extent of the area to be adopted.
- Provision for land dedication.
- Technical drawings of the works.
- A programme for the works and for the adoption.
- Provision for inspection and certification of the works.
- Agreement regarding the adoption, or not, of supporting structures.
There will be a fee associated with the agreement, covering the cost of; checking designs, preparing the agreement, inspecting the works, and ongoing maintenance of items not essential for highway purposes (commuted sums). There may also be a requirement for a bond from the developer to cover the highway authority against the possibility that the developer fails to properly complete the works, for example if they become insolvent.
The works must be constructed to a design and standard agreed by the highway authority. The developer will be responsible for carrying out the works at their own expense, and for maintenance costs until adoption. MERAKI can guide our clients through this process and provide drawings necessary to get a S38 Agreement.
S278 (Works to the existing public highway to facilitate the development)
Section 278 of the Highways Act 1980 allows a developer to carry out works to the public highway. This is generally necessary where planning permission has been granted for a development that requires improvements to, or changes to, public highways.
The agreement between the highway authority and the developer is called a Section 278 Agreement, and it may allow for items such as:
- Roundabouts.
- Priority junctions.
- Junctions with traffic lights.
- Right turn lanes.
- Improved facilities for pedestrians and cyclists.
- Improvements to existing junctions.
- Traffic calming measures.
The highway authority will be either Highways England for the strategic road network in England, or the local highway authority.
The agreement may include:
- Details of the relevant planning permission.
- The agreed design.
- Details of any bond required.
- Details of who will design and manage the works.
- The programme for the works.
- Provision for inspection and certification of the works.
- Costs.
The developer may be responsible for designing, carrying out and paying for the works to the satisfaction of the local highway authority, or the highway authority may carry out the works. The developer may also pay for all or part of works carried out by the highway authority if they are carried out in a way, at a time, or are modified to suit the developer.
In addition to the works themselves, the developer may be required to pay costs associated with:
- Making the agreement.
- Agreeing the scheme for the works.
- Permissions associated with the works.
- Land acquisition associated with the works.
- Administrative expenses incurred by the highway authority.
- Maintenance of the works (commuted sums).
MERAKI can guide our clients through this process and provide drawings necessary to get a S288 Agreement.
S184 (Vehicle crossover & permanent access works)
Section 184 of the Highways Act 1980 provides that a developer will need to enter an agreement for the construction of, or alterations to, any site access or accesses. It relates specifically to accesses where the work being done is all that is required to enable the development, or if the work needs to be done before the main works can proceed under a Section 38 agreement (adoption of highways) or a section 278 Agreement (allowing a developer to carry out works to a public highway).
The Local Highway Authority reviews and approves the agreements, and appropriate fees will be payable to them. A commuted sum may also be required for the Highway Authority to be able to maintain the works once they have been completed, usually for a fixed period between 10 and 25 years.
An agreement is necessary when a developer plans to construct or alter any site access or accesses to a public highway that is of a higher specification than something simple such as a dropped footway or verge crossing.
The scope of a Section 184 Agreement can be extended, in some instances, to cover additional minor works, such as relaying a short length of kerbing on either side of a new access, provision of street lighting for an access, or the re-positioning of a gully.
S106 Planning Obligation
The National Planning Policy Framework (NPPF) suggests that a planning obligation is, 'a legally enforceable obligation entered into under section 106 of the Town and Country Planning Act 1990 to mitigate the impacts of a development proposal.'
Planning obligations (also known as Section 106 Agreements or 'planning gain') are obligations attached to land that is the subject of a planning permission. They are used to mitigate or compensate for the negative impacts of a development or to prescribe the nature of a development.
They are intended to make acceptable developments which would otherwise be unacceptable by offsetting the impact by making local improvements. Because they apply to the land not the applicant, planning obligations transfer with the land to future owners of the site.
Planning obligations may be undertaken unilaterally by the developer or by agreement between the developer and a local planning authority.
Planning obligations must be:
- Directly relevant to planning.
- Necessary to make the proposed development acceptable.
- Directly related to the proposed development.
- Reasonable and in proportion to the development.
Examples of planning obligations could include:
- Requiring that the development includes affordable housing.
- Requiring compensation (or substitute provision) for the loss of open space.
- Making a contribution to the provision of additional infrastructure to serve the development (such as a new classroom at a school) or increasing the provision of public transport.
Obligations can be direct monetary compensation, payment for other expenses or payment directly by the developer for the provision of something required by the obligation. They may also include ongoing maintenance payments.
There are numerous others that a developer may come across in the course of a project and these can fall under various acts such as the Town & Country Planning Act, the Highways Act (1980) the Private Street Works Code, Stopping Up orders, Footpath Diversion Orders, Definitive Map Modification Orders, etc. We have extensive experience in these matters.
We provide assistance, comments and advice to clients when negotiating the terms of such items as may reasonably be incorporated into such an agreement. Where specific issues are raised, we can recommend appropriate legal expertise.
