Completions & Planning · Mandatory · Pre-Construction

Section 278 / Section 38 Highway Agreement Record

A record tracking Section 278 highway improvement agreements and Section 38 road adoption agreements with the Local Highway Authority. Documents design approval, agreement negotiation and execution, bond details, LHA inspections during construction, maintenance period, and formal adoption. S278/S38 agreements take 3-6 months to negotiate and must be executed before highway works commence.

Last reviewed: 29 March 2026 — This guide reflects UK law as of this date. Highways Act 1980 remains current with no amendments enacted as of 29 March 2026. Next scheduled review: 29 March 2027.

Legal basis	Highways Act 1980
S278	Developer funds improvements to existing public highway — works carried out under agreement with the Local Highway Authority
S38	New roads within a development adopted by the highway authority as public highway
Legal agreement	Both require a formal legal agreement with the Local Highway Authority (LHA) before works commence
Bond	Bond or commuted sum typically required to cover the cost of completing works if the developer defaults
Adoption	Maintenance period (typically 12 months) before formal adoption by the highway authority

1. Highway Agreements — Essential Pre-Construction Legal Requirements on Most Developments

Section 278 and Section 38 highway agreements are required on the vast majority of housing, retail, and commercial developments. They are frequently attached as pre-commencement planning conditions, and starting highway works without an executed agreement is unlawful. The legal and financial consequences of carrying out works on the public highway without the proper agreement in place are severe.

Highway agreement negotiation is one of the most common causes of programme delay on development projects. The process involves technical design approval, legal agreement drafting, bond arrangement, and formal execution — all of which require input from the Local Highway Authority, which has limited resources and competing priorities. Allow 3 to 6 months for the full process from initial submission to executed agreement. Failure to programme this lead time adequately is a recurring cause of delayed site starts.

Programme lead time

Allow 3 to 6 months from initial design submission to executed highway agreement. This includes technical design checking by the LHA (which may require multiple iterations), legal agreement drafting, bond arrangement, and formal execution. Do not assume the LHA will expedite the process to meet your construction programme — build the lead time into the pre-construction programme from the outset.

2. Highway Agreement Record

The following table sets out the information that must be recorded and tracked for each highway agreement associated with the development.

Field	Detail
Project reference	Site address, planning reference, developer name, project manager.
Agreement type	S278 (works to existing public highway) or S38 (new roads to be adopted). Some developments require both.
Local Highway Authority	Name of LHA, contact officer, reference number assigned by LHA.
Highway works description	Scope of works: new junction, access road, footway, traffic signals, pedestrian crossing, drainage, street lighting, road markings, signage. Cross-reference to approved drawings.
Design submission	Date of initial design submission to LHA. Technical checking fee paid. Design approval iterations — comments received, revisions submitted, final approval date.
Agreement negotiation	Legal agreement drafting: developer’s solicitor and LHA legal team. Key terms: scope of works, specification, programme, bond, commuted sums, maintenance period, adoption criteria.
Bond details	Type of bond (surety bond, cash deposit, or bank guarantee). Bond value (typically 100–150% of estimated works cost). Bond provider. Expiry date and renewal arrangements.
Agreement executed	Date of formal execution (signing and sealing) by all parties. Works CANNOT commence before this date. Copy retained in project file.
Works commencement	Date highway works commenced on site. Confirm agreement was executed before commencement. Contractor carrying out works (must be approved by LHA).
LHA inspections	Schedule of LHA inspections during construction. Inspection dates, findings, any remedial works required. LHA inspector name and contact.
Practical completion	Date of practical completion of highway works. LHA inspection confirming works complete to required standard. Snagging items and rectification.
Maintenance period	Start date and duration (typically 12 months from practical completion). Developer responsible for all maintenance and defect repair during this period.
Formal adoption	Date of formal adoption by the highway authority. Road becomes public highway maintained at public expense. Adoption certificate issued by LHA.
Bond released	Date bond released following satisfactory completion of maintenance period and formal adoption. Confirm with bond provider that obligation is discharged.

3. Common Mistakes

Starting works on public highway before agreement is executed

Carrying out works on the public highway without an executed S278 or S38 agreement is unlawful. The highway authority can require the developer to remove the works and reinstate the highway at the developer’s cost. There is no retrospective mechanism to regularise works carried out without an agreement. In addition, any damage to the highway or injury to road users during unauthorised works creates significant uninsured liability for the developer.

Not allowing enough programme time for negotiation

Highway agreement negotiation routinely takes 3 to 6 months from initial design submission to executed agreement. This includes multiple rounds of technical design checking, legal agreement negotiation, bond arrangement, and formal execution. Developers who assume the process can be completed in a few weeks consistently experience programme delays. The LHA has no obligation to expedite the process, and applying pressure can be counterproductive. Build realistic lead times into the pre-construction programme.

4. Frequently Asked Questions

What is the difference between S278 and S38?▾

S278 covers works to the EXISTING public highway — for example, constructing a new junction, widening a road, installing traffic signals, or creating a new access point. The developer funds the works, which are carried out either by the LHA or by an approved contractor under LHA supervision. S38 covers NEW roads within a development that are to be adopted by the highway authority as public highway. This matters significantly to homebuyers — an unadopted road remains the responsibility of the developer or residents for maintenance, repair, street lighting, and drainage. Most housing developments require both a S278 agreement (for the junction onto the existing road) and a S38 agreement (for the internal estate roads).

What is a commuted sum?▾

A commuted sum is a capital payment made by the developer to the highway authority to cover the future maintenance costs of adopted highway infrastructure. It is typically required for non-standard features such as traffic signals, pedestrian crossings, soft landscaping within the highway, sustainable drainage systems (SuDS), and street lighting. The amount is calculated by the LHA based on the estimated maintenance cost over a defined period (typically 15 to 30 years). The commuted sum is usually paid before the highway is formally adopted.

Can the developer use their own contractor for highway works?▾

For S278 works, the LHA may carry out the works itself using its own contractor, or may permit the developer to use an approved contractor. The LHA will specify which approach applies. For S38 works, the developer typically uses their own contractor, but the contractor and the design must be approved by the LHA, and the works are subject to LHA inspection throughout. In both cases, the works must be carried out to the LHA’s specification and to adoptable standards.

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