Section 278 Agreement
A Section 278 Agreement (S278) is an agreement made between a developer and a Highway Authority to enable works to be carried out on the public highway to facilitate development.
The agreement is made under Section 278 of the Highways Act 1980. The need to enter into an S278 usually arises as a result of a planning application made for a development. A condition of consent is that the developer and Highway Authority enter into an agreement to provide new infrastructure and the S278 is the mechanism by which the new infrastructure is provided.
When a developer proposes to make a planning application, they should consult with the Highway Authority to establish what action they need to take, and what documents they need to submit in support of their application. For smaller developments where there is a low impact on transport, a Transport Statement will suffice. For a larger development, a Transport Assessment (TA) will need to be prepared in agreement with the Highway Authority. The TA will examine the impacts of development and will identify any measures that need to be carried out to ensure that the development does not have a detrimental effect on existing transport provision (known as nil detriment).
The TA will include proposals for any measures required to facilitate a development. This could include a new junction (for example at the new entrance to a superstore, or a series of improvements to the existing road network to accommodate additional traffic generated by the development.
Once planning consent is achieved, the developer will enter into a S278 with the Highway Authority to enable the work to by carried out. This is usually enforced as a condition of the planning consent, or as a condition of the Section 106 Agreement associated with the planning consent.
All S278s are different and the precise content will depend on the requirements of the highway authority, the scale of the development and the requirements of the developer. However, the following items are generally used:
Details of the parties (name address, registered offices etc.) Schedule of work to be carried out. The level of detail varies - they can include a full detailed design, or more often will be an outline design only. Details of technical approvals required. The developer is obliged to obtain full technical approval for the scheme design from the highway authority prior to commencing works on site. Often, the agreement will set down timescales for review and approval of drawings. Details of Safety Audits required. Details of a bond required to ensure that there is money available to complete the works in the event that the developer defaults. Arrangements for handover of the completed works to the highway authority. Typically this includes the provision of as-built drawings and the completed scheme health and Safety File required under the Construction (Design and Management) Regulations. Requirements for a maintenance period where the developer has to make good defects, usually a year after completion of the works.
There are a few exceptions to the use of S278 agreements to facilitate amendments to the network for development, and they usually relate to the very small or very large projects. Small projects, where the scheme is solely to create an access, can be built under S184 agreements, sometimes known as bellmouth agreements. Very large projects may be built under Development Consent Orders or Transport and Works Act Orders. In both cases, the Order made under the respective Acts provides the scheme promoter with all the powers they need to build their development, rendering a S278 agreement unnecessary.
Original Author(s): SimonD
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