Q&As

Is there any provision under section 38 of the Highways Act 1980 or elsewhere which requires a mortgagee to be party to a section 278 or section 38 agreement?

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Produced in partnership with James Ryan of Carbon Law
Published on LexisPSL on 22/05/2020

The following Planning Q&A produced in partnership with James Ryan of Carbon Law provides comprehensive and up to date legal information covering:

  • Is there any provision under section 38 of the Highways Act 1980 or elsewhere which requires a mortgagee to be party to a section 278 or section 38 agreement?

Is there any provision under section 38 of the Highways Act 1980 or elsewhere which requires a mortgagee to be party to a section 278 or section 38 agreement?

Agreements under section 278 of the Highways Act 1980 (HiA 1980) and agreements under HiA 1980, s 38 are very different from each other and thus need to be considered separately.

S 278 Agreements are used where a highway authority authorises someone (usually a developer) to carry out works on an existing highway, and deal with the funding of those works within existing public highway. As such, there would not usually be any third party interest in the highway. Provided that the highway authority (HA) is satisfied that the works will be of benefit to the public, it may enter into an agreement with any person (typically a landowner, or a developer seeking planning consent for an adjacent or nearby proposed development) for that person to pay for those works.

S 38 agreements are an offer by the landowner to the HA to dedicate some part of the landowner’s property to become highway. Such an offer would need to be given with the clear consent of anyone with an interest in the land (including a mortgagee), or it would not be lawful. The agreement usually provides for the HA to accept the dedication, and thus to adopt the

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