Highway agreements: Section 278, 38, 50 and 106
Work out which highway consent your scheme actually needs, what the highway authority will charge in fees and bond, and the sequence from technical approval through construction to final certificate.
Before you use the selector
Almost every development that touches a public road needs a written agreement or licence with the body that owns the road. Picking the wrong one is one of the most common causes of a stalled start on site, because the fees, the bond, and the technical approval all sit behind it.
This page covers England and Wales. Scotland and Northern Ireland use separate legislation, so treat the sections below as a guide to the equivalent process rather than the exact statute.
A bond is financial security, usually a guarantee from a bank or insurer, that the authority can use if the developer fails to complete the works. Unlike an authority fee, it is not normally a cash payment, although it uses credit facility headroom and may be replaced by a cash deposit.
Highway authority
The body legally responsible for a road. For most roads it is the county or unitary council. For motorways and trunk roads it is National Highways in England and the Welsh Ministers in Wales.
Publicly maintainable
A road "maintainable at the public expense" is one the authority already has a duty to repair. Roads that are not adopted are private streets, and nobody at the council has that duty.
Technical approval
The authority's sign-off of your detailed design: layout, construction build-up, drainage, lighting, signing, and any structures. It comes before the agreement is sealed, not after.
Which agreement do you need?
Describe the works. Matching consent cards are highlighted below and the approval sequence switches to the right route.
Trunk-road authorities and stopping-up orders differ between England and Wales.
Pick the main element. If your scheme includes several, run the selector once for each.
Check the council's list of publicly maintainable highways before assuming. Plenty of estate roads were never adopted.
This only affects the Advance Payments Code check for a private or unadopted street.
Likely route
Section 278 agreement with the local highway authority
Works on an existing public road are carried out under a Section 278 agreement, at your expense, once the authority is satisfied the works benefit the public.
What to do next
The consents at a glance
Cards matching your selector inputs are outlined. Most schemes of any size need more than one of these, and they run on different timescales.
Section 278 agreement
Highways Act 1980, section 278, "agreements as to execution of works"
- •Works to an existing public road: new site accesses, bellmouths (the flared, funnel-shaped mouth of a junction), junction improvements, signals, crossings, footway widening, traffic calming.
- •The developer pays for the works, and usually builds them under the agreement. The road is already publicly maintainable, so nothing is adopted at the end.
- •The authority can only enter the agreement if it is satisfied the works will benefit the public.
- •Usually secured by a planning condition, so the permission cannot be implemented until the agreement is signed.
Section 38 adoption agreement
Highways Act 1980, section 38, "power of highway authorities to adopt by agreement"
- •New roads you build and then hand over: estate roads, spine roads, adoptable footways, and their drainage and lighting.
- •At the end of the process the road becomes maintainable at the public expense, and the maintenance liability passes to the council.
- •Adoption is not automatic. If you never enter the agreement, the road stays private and the residents or management company own the repair bill.
- •Nearly always paired with a Section 278 for the tie-in, meaning the junction where the new road meets the existing public road.
Section 184 vehicle crossing
Highways Act 1980, section 184, "vehicle crossings over footways and verges"
- •The dropped kerb route: a vehicle crossing over the footway or verge to a driveway or small yard.
- •Far lighter than a Section 278. Many councils build it themselves at your cost, or licence an approved contractor to do it.
- •The boundary with Section 278 is set by local policy. Some authorities use Section 184 for bellmouths, heavy-duty commercial accesses and related minor carriageway works; others require Section 278. Confirm the route before design starts.
Section 50 street works licence
New Roads and Street Works Act 1991, section 50, "street works licences"
- •For placing and keeping private apparatus in the highway: a private drain, a private duct, a data or power cable that will not be adopted by a utility.
- •Note this is the New Roads and Street Works Act, not the Highways Act. Section 50 of the Highways Act 1980 is a different power entirely.
- •A statutory undertaker, meaning a utility with its own statutory right to dig in the street, does not need one. It works under its own street works powers instead.
- •The licence sits alongside, not instead of, the permit or notice for the dig itself and the reinstatement standard that follows.
Section 106 planning obligation
Town and Country Planning Act 1990, section 106, "planning obligations"
- •Not a highway agreement. It is the planning mechanism that makes a development acceptable, and it often carries the highway obligations.
- •Typically used for off-site money: contributions to junctions, bus services, walking and cycling routes, or travel plan monitoring, where the council will do the work.
- •The Section 106 usually contains the trigger that forces the Section 278 to be entered before a given point, such as first occupation.
- •Government guidance on when obligations can be sought is in the planning obligations Planning Practice Guidance.
Section 104 sewer adoption
Water Industry Act 1991, section 104, "agreements to adopt sewer, drain or sewage disposal works"
- •The drainage equivalent of a Section 38: the water and sewerage company agrees now to adopt the sewers you are about to build.
- •Agreed with the water company, not the council, and it runs on its own timetable with its own bond.
- •Where the drainage sits under an adoptable road, the Section 38 and Section 104 have to be sequenced together or one holds up the other.
- •Section 139, builders' skips: a skip cannot be put on the highway without the authority's permission.
- •Section 169, scaffolding: a licence is needed before erecting a scaffold on or over the highway.
- •Section 171, deposit of building materials and making of temporary excavations in streets, which covers stockpiles and temporary road openings.
- •Section 172, hoardings or close-boarded fences used to separate building work from the street. Section 173 requires a hoarding adjoining a street to be securely fixed.
- •These are short permissions, not highway agreements. The authority may charge a fee and refundable damage deposit, but there is no works bond or technical approval process comparable to Section 278.
Stopping up and diversion
- •Needed when your development physically removes or moves a public right of passage, including a length of footway or an old access road.
- •Where development with planning permission affects the highway, the TCPA section 247 order is made by the Secretary of State in England or the Welsh Ministers in Wales.
- •The Highways Act section 116 route goes through a magistrates' court instead, on the highway authority's application.
- •Both routes carry a statutory objection period. Treat this as the long pole in the programme, not a formality.
Advance Payments Code
Highways Act 1980, section 219, "payments to be made by owners of new buildings in respect of street works"
- •The one most developers miss. If you put up a building that fronts a private street, you must pay or secure a sum to the street works authority before work on the building starts.
- •The sum reflects what it would cost the authority to bring the street up to adoptable standard, so on a large frontage it is not small.
- •Section 219(4) sets out the exemptions. The important one for developers: a deposit is not required where a Section 38 agreement is already in place under which the street will become publicly maintainable.
- •In other words, entering the Section 38 early can remove the advance payment entirely. Leaving it late can mean funding both.
The approval sequence
Both routes follow the same shape: approve the design, secure the money, build under inspection, then serve out a maintenance period before the authority signs it off. The selector switches this to the route that matches your works.
- 1
Pre-application and planning
The highway layout is fixed at planning, not afterwards. The transport statement or assessment sets the access strategy, and a Stage 1 road safety audit, meaning an independent review of the scheme's road safety implications by a team separate from the designers, is often done at this point. Getting an access geometry through planning that the highways team will not later approve is an expensive way to start.
- 2
Application and initial fee
Submit the Section 278 application with the approved planning drawings. Most authorities will not start technical checks until the fee is paid. Central Bedfordshire, for example, states plainly that payment of the agreement fee is required before technical checks commence.
- 3
Detailed design and technical approval
Construction drawings, build-up, drainage, lighting, signing and lining, and any structures. Stage 2 road safety audit follows the completed detailed design, and the designer has to respond formally to each audit item. Expect more than one round of comments.
- 4
Agreement drafted, bond and fees in place
Legal drafting runs in parallel with technical approval. Before it is sealed you need the surety or cash deposit lodged, the supervision fee paid, insurances confirmed, and any commuted sums agreed. A surety is the guarantee, usually from a bank or insurer, that the authority can call on if you do not finish; a commuted sum is a one-off payment covering the authority's future maintenance of items it would not otherwise choose to own. Rotherham requires a surety of 100% of the estimated cost of the Section 278 works plus any necessary diversion or protection works.
- 5
Road space, traffic management and start on site
Book the road space and get the permit or notice in. Temporary traffic signals, lane closures, or a temporary traffic regulation order all have their own notice periods, and on a busy road the authority may restrict you to off-peak or night working.
- 6
Construction under authority inspection
The supervision fee buys the authority's inspector. Give notice at each hold point: formation, sub-base, kerb line, binder course, and surfacing. Work covered up without an inspection is the classic reason for an opening-up instruction later.
- 7
Stage 3 audit and provisional certificate
The Stage 3 road safety audit is carried out when construction is complete, and should be done before the scheme opens to traffic. Once snags are cleared the authority issues the provisional or substantial completion certificate, which starts the maintenance period and releases most of the bond.
- 8
Maintenance period and final certificate
Rotherham runs a maintenance period of one year from the date of the completion certificate, with the remaining 10% of the bond released at the final completion certificate. Defects during that year are yours, so budget for a return visit rather than assuming the job is closed.
- 1
Design to the authority's adoption standard
Adoptable roads are designed to the authority's own design guide, informed by Manual for Streets and Manual for Streets 2. Layouts that work commercially often fail here on turning circles, forward visibility, gradient, or refuse vehicle tracking.
- 2
Application, fee and technical check
Planning permission first, then the Section 38 application. Central Bedfordshire sets an agreement fee covering administration, technical design check and site inspection at 14% of the bond sum, and requires it before technical checks begin.
- 3
Bond, commuted sums and sealing
Central Bedfordshire sets the bond at 110% of the tender price, to include any service diversions and commuted sums, and requires all commuted sums to be paid before the agreement completes. Buckinghamshire requires a bond or cash deposit to the value of the full cost of the works, including alterations to statutory undertakers' plant and mains.
- 4
Construction with inspection at hold points
Formation level, sub-base, kerbs and channels, drainage connections, ducting, base and binder course. Inspections typically only start once the full fee is paid. Sewers under the road follow their own Section 104 inspection regime in parallel.
- 5
Substantial completion and bond reduction
The provisional or substantial completion certificate is issued when the works are complete and open for public use. Buckinghamshire allows the developer to apply for the bond or cash deposit to be reduced by up to 90% at that point.
- 6
Twelve month maintenance period
The developer stays responsible for maintenance and remedial works. The surfacing course is often deliberately left until the end of this period on a housing site, so that construction traffic damage is dealt with before handover.
- 7
Final inspection, Stage 3 audit and adoption
A final inspection and Stage 3 road safety audit precede the final certificate. On issue, the road is adopted as public highway and the remaining bond is released. Until that certificate exists, the road is still private and still yours.
Fees, bond and cash exposure
Percentages are set locally, so enter your authority's published figures. The published examples below highlight to match whatever you enter.
Use the tender price for the highway works only, including service diversions.
Published examples range from 100% to 110% of the works or tender price.
Check which one your authority uses. On a 110% bond the difference is real money.
Some authorities split this into separate design check and supervision fees. Add them together here.
The share still held after the provisional certificate, until final certificate.
A one-off payment for future maintenance of non-standard adopted items.
Authority fees
£23,375
8.5% of the bond value
Bond or surety
£275,000
Security lodged before sealing
Cash before you start
£23,375
Fees plus commuted sums
Held through maintenance
£27,500
Released at final certificate
Your inputs put the authority's fee at 9.35% of the works value.
Published authority examples
Three authorities that publish their basis openly. Individual cells highlight when their published assumption matches your entry. These are illustrations of how the charge is structured, not a national rate.
| Authority | Bond basis | Fee basis | Fee as % of works | Maintenance |
|---|---|---|---|---|
| Rotherham (Section 278) | 100% of estimated cost, plus diversion and protection works | 8.5% supervision fee on the surety value | 8.5% | 12 months, bond to 10% at completion certificate |
| Central Bedfordshire (Section 38) | 110% of tender price, including diversions and commuted sums | 14% of the bond sum, covering administration, design check and inspection | 15.4% (derived) | 12 months |
| Buckinghamshire (Sections 278 and 38) | Full cost of the works, including statutory undertakers' plant and mains | Published as a fee schedule, not a single percentage | Not published as a percentage | Normally at least 12 months, bond reduced by up to 90% at provisional certificate |
Central Bedfordshire's 15.4% is derived: 14% of a bond set at 110% of the tender price. Sources are listed at the foot of this page.
Bond, surety and commuted sum
Three pieces of money that behave very differently. Mixing them up in a cash flow is a common and painful error.
Bond or surety
A guarantee, usually from a bank or insurer, that the authority can call on if you fail to finish the works. It is security, not a payment, so a bond does not leave your bank account, but it does consume facility headroom and carries a premium.
A cash deposit is the alternative, and it does tie up real money for the whole build plus the maintenance period.
Fees
Real money, gone. Covers legal drafting, technical checking of the design, and the inspector's time on site. Often split into an initial design check fee and a later supervision fee.
The fee is the trigger for work starting at the authority's end, so paying it late delays the whole chain.
Commuted sum
A one-off payment that buys out the authority's future maintenance liability for items it would not otherwise choose to own. Buckinghamshire lists structures, street lighting, trees, soakaways, permeable paving and balancing ponds.
Design decisions drive this. Specifying block paving or a bespoke drainage feature on an adoptable road converts a design preference into a cheque.
Road safety audit stages
A road safety audit, or RSA, is an independent review of a scheme's road safety implications only, carried out by a team separate from the designers. The stages are set out in GG 119, road safety audit, part of the Design Manual for Roads and Bridges (DMRB), the standard set that governs the strategic road network. Local authorities apply the same framework to Section 278 and Section 38 schemes.
| Stage | When | What it looks at |
|---|---|---|
| Stage 1 | Completion of preliminary design | Scheme concept, including matters bearing on land take, licence or planning requirements. Where no preliminary design is done, it can be combined with Stage 2. |
| Stage 2 | Completion of detailed design | The detailed aspects of the scheme. It also reviews the actions from the Stage 1 response report, and repeats anything left incomplete. |
| Stage 3 | Completion of construction | The scheme as built. It should be undertaken before the scheme opens to traffic. |
| Stage 4 | Post-opening monitoring | How the scheme performs in use. Unlike stages 1 to 3, no audit response report is required. |
GG 119 requires Stage 1 and Stage 2 audits to be repeated if the previous audit for that stage is more than five years old. On a slow-moving development that is worth diarising, because a lapsed audit can reopen a design you thought was settled.
Where these agreements stall
Patterns that show up repeatedly on developer-funded highway works.
Starting the agreement after the programme is fixed
Technical approval, legal drafting, bond arrangement and road space booking run in series more often than in parallel. Treating the agreement as a pre-start formality rather than a design workstream is the single most common cause of slippage.
Assuming the road is adopted
If the frontage road turns out to be a private street, there is no Section 278 to enter, and the Advance Payments Code may require a deposit before you start the building. Check the authority's list of publicly maintainable highways at feasibility, not at pre-start.
Utility diversions found late
A gas main or LV cable under the new kerb line adds both cost and a separate utility programme that you do not control. Bond values in Central Bedfordshire and Buckinghamshire both explicitly include diversions, so a late find moves the bond as well as the budget.
Covering up work without inspection
Formation and sub-base are the usual casualties. The inspector cannot certify what they did not see, and the remedy is opening up at your cost, in the middle of a live carriageway.
Ignoring the maintenance period in the cash flow
Twelve months of residual bond, plus the cost of returning to fix defects, sits well past the point most people consider the job finished. Price the return visit rather than discovering it.
Damage to the existing road from site traffic
Separate from the agreement, Highways Act 1980 section 59 lets a highway authority recover the cost of extraordinary damage caused by excessive weight or extraordinary traffic. A condition survey before muck-away starts is cheap insurance.
Frequently asked questions
Sources
- Highways Act 1980, section 278 - agreements as to execution of works
- Highways Act 1980, section 38 - power of highway authorities to adopt by agreement
- Highways Act 1980, section 184 - vehicle crossings over footways and verges
- Highways Act 1980, section 219 - Advance Payments Code, including the section 38 exemption in subsection (4)
- Highways Act 1980, section 59 - recovery of expenses due to extraordinary traffic
- Highways Act 1980 sections 139, 169, 171 and 172 - skips, scaffolding, materials, temporary excavations and hoardings
- Highways Act 1980, section 116 and Town and Country Planning Act 1990, section 247 - stopping up and diversion routes
- New Roads and Street Works Act 1991, section 50 - street works licences for private apparatus
- Water Industry Act 1991, section 104 - agreements to adopt sewers at a future date
- Town and Country Planning Act 1990, section 106 and the planning obligations guidance
- DMRB GG 119, road safety audit - audit stages, response reports, and the five year revalidation rule
- Rotherham MBC, section 278 procedure document for developers - 8.5% supervision fee, 100% surety, 12 month maintenance, 10% bond retention
- Central Bedfordshire Council, section 38 road adoption agreements - 110% bond of tender price, 14% agreement fee on the bond sum
- Buckinghamshire Council, section 38 guidance notes - full cost bond, 90% reduction at provisional certificate, commuted sum triggers
- Manual for Streets and Manual for Streets 2 - residential and lightly trafficked street design
- Design Manual for Roads and Bridges - the standard set for the strategic road network
- Welsh Government PAG 109/18 - Section 38, 184 and 278 procedures for development affecting a motorway or trunk road in Wales
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