Negotiating a s 278 agreement—the developer’s perspective
Negotiating a s 278 agreement—the developer’s perspective

The following Planning guidance note provides comprehensive and up to date legal information covering:

  • Negotiating a s 278 agreement—the developer’s perspective
  • Preparatory stages in agreeing a s 278 agreement
  • Post-completion of the s 278 agreement

This note is based on the assumptions that:

  1. HE is the relevant authority and the works in question affect the strategic road network, and

  2. the reader is acting for the developer

Practice Note: Negotiating a s 278 agreement—the Highway Agency's perspective is based on the assumption that the reading is acting for HE.

See precedent: Precedent s 278 agreement.

Preparatory stages in agreeing a s 278 agreement

Developers must initially persuade HE that the s 278 works will be of benefit to the public.

It is common practice for the HA to provide the first draft of the agreement.

Costs

The developer must undertake to be responsible for all costs incurred by HE.

Unfortunately for the developer, there is little negotiation space in relation to the costs of the agreement or the carrying out of the works. The developer is responsible for the:

  1. administration fee, which covers HE’s costs for the design, preparation and monitoring of the works, and

  2. a commuted sum, which should be sufficient to cover the future maintenance of the new strategic road infrastructure

Staged payments may be scheduled and provision for potential uplift may be made to allow for the fact that costs may be higher than originally envisaged. The detail of the works will be set out in the agreement, along with mechanisms to allow for any variations that