Section 38 and section 278 Highways Act agreements—contractor’s perspective

The following Construction practice note provides comprehensive and up to date legal information covering:

  • Section 38 and section 278 Highways Act agreements—contractor’s perspective
  • Section 38 agreements
  • Section 278 agreements
  • The contractor's perspective

Section 38 and section 278 Highways Act agreements—contractor’s perspective

This Practice Note examines agreements entered into under sections 38 and 278 of the Highways Act 1980, considering the obligations they impose and, in particular, the contractor’s position in relation to them.

The provision of new roads and footpaths (collectively referred to as ‘highways’ in this Practice Note) is a common feature of many developments. Likewise, many developments require changes or improvements to be made to existing roads and footpaths. Indeed, in some cases, it may be a condition of a planning permission that new highways are built or changes to existing highways infrastructure are made. See Practice Note: Planning conditions—key points.

Typically, the developer will intend that, once such works are completed, such new and/or altered highways will be adopted and maintained by the local highway authority (LHA). As a result, agreements under the Highways Act 1980—particularly, in this context, sections 38 and 278—are commonly entered into between the LHA and the developer in order to ensure delivery of the necessary or agreed highways works to the required standard.

Adoption will normally take place a pre-agreed period of time after completion of the highway works (typically 12 months). Until that final adoption takes place, the developer remains responsible for their maintenance: both for rectification of defects in the works and for ongoing routine maintenance. After the agreed maintenance

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