What is a Section 278 Agreement?
We have experienced the following phone call on many occasions “…I’ve got planning permission and have started construction but, having approached the Highway Authority to discuss building my site access junction, they tell me I need a “278 Agreement” and that this is going to take months and a lot of money to sort out!…please help!!”
Unfortunately, the Highway Authority are correct – 278 Agreements do take time and money to resolve and to prepare. However, with our assistance, hopefully we can minimise the impact and ensure that the process is as efficient as possible.
So, what is a Section 278 Agreement? Think of it this way, if someone needed to do work on your land, you would want to ensure that; you knew what they are going to do, you were confident that the work was going to be completed to a good standard, you are not going to have to pay to maintain their works in the future, the works aren’t going to endanger anyone else on your land and, if anyone were to get hurt, that there will be no repercussions upon yourself. Highway Authorities are responsible for maintaining the ‘public highway’ and represent you and I as tax payers in this respect. They therefore need to satisfy themselves in respect of the points as above in exactly the same way. So, when you (as a Developer) want to go onto their land (the public highway) to construct your development access works, a “278 Agreement” is the legal process through which Highway Authorities manage their legal obligations and ensure that the works are to a suitable standard with minimal risk to others.
“Section 278” refers to s278 of the Highways Act 1980. As will be noted, the wording therein is particularly unspecific but the legal powers bestowed on a Highway Authority by the legislation is simply that:-
- They can enter into a legal agreement with a developer to charge for works on the public highway;
- The works have to be ‘of benefit’ to the public;
- They have power to adopt additional land as ‘public highway’ as part of the agreement.
Contrary to what many people believe:-
- all Highway Authorities work differently;
- there is no standard procedure for 278 Agreements;
- there is no standard and/or guaranteed response times to submissions;
- technical/design requirements vary between different authorities.
More importantly, unless and until a Developer has a 278 agreement signed, and has completed all of the Highway Authority’s procedures, any work undertaken upon the the public highway is illegal and a prosecution can result.
The stages as follows provide a general guide to the 278 Agreement process:-
- Data gathering – arrange for a topographical survey, obtain highway boundary details, seek details of utility company apparatus in the area.
- Initial design – prepare initial 2D layout details for the works and undertake early dialogue with the Highway Authority to get their input. It is often the case that the access junction layout shown as part of a masterplan/architect’s drawing which has gained planning approval requires further consideration and initial highway design to ensure that the full implications of the works can be assessed and agreed with the Highway Authority.
- Stage 1 Road Safety Audit – Arrange for the layout details to process through a “Stage 1 Road Safety Audit” procedure.
- Obtain Highway Authority confirmation that the 2D layout of the works is suitable to act as the basis for the further detailed 3D alignment and constructional design process.
- Detailed Design – Undertake the 3D alignment and detailed constructional design of the works.
- Stage 2 Road Safety Audit – Arrange for the layout details to process through a “Stage 2 Road Safety Audit” procedure.
- Technical Approval – submit full construction details to the Highway Authority and liaise with them to seek their final approval.
- Utility Company Apparatus – Enter into discussions with utility companies to determine the impacts of the works upon their apparatus and seek details of their costs for diverting/protecting any ducts/cables/pipes etc.
- Legal discussions – Liaise with the Highway Authority solicitors to finalise the legal agreement and then arrange for this to be signed by all parties.
- Money – make payments to the Highway Authority for their work in inspecting the works and to cover the future maintenance of them.
- Roadspace Booking/Notification – Follow standard procedures for the coordination of the works on the highway network with all other roadworks and ensure that legal permissions for temporary traffic signals, road restrictions and traffic management proposals are completed.
- Completion of construction – Arrange for the completed works to process through a “Stage 3 Road Safety Audit” procedure.
- Defects Liability – Maintain the works for an agreed period (generally one year but sometimes two and occasionally longer periods).
- Final ‘sign off’ – Formal completion of all Developer obligations and adoption of the works by the Highway Authority.
As a guide, even relatively small scale 278 Agreement works will require at least 6 months to progress from item 1 above to the granting of technical approval (item 7). 6 months to 9 months is a not unrealistic timescale for a start of works on-site.
Hopefully you now know the answer to “what is a Section 278 Agreement?”. The best advice we can offer therefore, is to enter into early dialogue with a Highway Authority, understand their technical/design requirements and procedures that need to be followed, and allow plenty of time for these to be completed. We’re always happy to help and to discuss any particular issues so please do contact us.