Q&As

A developer is entering into an agreement under section 278 of the Highways Act 1980, pursuant to a condition under a planning permission. The works covered by the agreement are entirely within highway running along the application site. The developer is the owner of the application site, but the application site has charges against it. Should the mortgagee be party to the agreement?

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Produced in partnership with Emily Knowles of Sharpe Pritchard
Published on LexisPSL on 02/11/2020

The following Planning Q&A produced in partnership with Emily Knowles of Sharpe Pritchard provides comprehensive and up to date legal information covering:

  • A developer is entering into an agreement under section 278 of the Highways Act 1980, pursuant to a condition under a planning permission. The works covered by the agreement are entirely within highway running along the application site. The developer is the owner of the application site, but the application site has charges against it. Should the mortgagee be party to the agreement?

A developer is entering into an agreement under section 278 of the Highways Act 1980, pursuant to a condition under a planning permission. The works covered by the agreement are entirely within highway running along the application site. The developer is the owner of the application site, but the application site has charges against it. Should the mortgagee be party to the agreement?

Under section 278 of the Highways Act 1980 (HiA 1980), a highways authority can enter into an agreement with a developer to facilitate development on adopted public highway. Under the agreement, the works may be carried out by the developer, or the agreement can be used as a funding mechanism for the highway authority to carry out the works. A section 278 agreement is often linked to a planning permission and associated agreement made under section 106 of the Town and Country Planning Act 1990 (TCPA 1990), but this is not necessarily the case.

HiA 1980, s 278 says the highway authority may enter into an agreement with 'any person'—usually the developer of the associated planning permission. However, while a section 106 agreement binds the land on which the development is carried out and therefore binds landowners, a section 278 agreement relates to works on the highway and not the land on which the associated development (if any) is being carried out. As

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