Skip to main content
Engineer checking levels beside a roller compacting Type 1 within a barrier-separated bellmouth access

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.

Updated

Share

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 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. 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. 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. 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. 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. 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. 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. 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. 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.

    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.

    % of works

    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.

    % of bond

    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

    Share

    Related resources

    Send an enquiry

    Request a callback

    We'll call you back during work hours (Mon-Fri, 9am-5pm).