Section 38 - Highways Act 1980, Adoption of New Highways
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Section 38 relates specifically to the creation of new highways upon land in the ownership of anyone other than the
highway authority. It is an agreement between the land owner and the authority for the construction of new highway and
the ultimate adoption by the authority as a public highway. The agreement secures a bond for the cost of the works, to
enable completion of the works by the authority upon default by the developer, usually for reasons of insolvency but
occasionally in instances where the developer has failed to complete the works within a specified or 'reasonable' period
of time. The agreement also identifies fees payable for supervision by the adopting authority.
Any developer or his consultants must enter into a process of submitting detailed design proposals to the authority
for approval prior to construction works and, sometimes, the agreement will not be entered into until the highway
authority has been satisfied that all of its criteria can be met.
All highways must be drained to the satisfaction of the authority. Where the highway drains via new sewers, to be
adopted as public sewers, the S.38 agreement will not usually be entered into until the authority is satisfied that
the developer is entering to a sewer adoption agreement. Upon completion of the works the developer must seek the
agreement of the authority to place the new highway 'on maintenance'. This is a period of 12 months at the end of which
any defects are to be remedied prior to formal 'hand-over' to the authority as a public highway.
Section 278 - Highways Act 1980, Works Within The Highway
Section 278 covers proposed highway works within the existing highway (modification of highways not general excavation
for different reasons). This would generally encompass works such as new traffic islands, roundabouts, junction
improvements, carriageway alignment etc. and is often accompanied by a Section 38 Agreement for works outside the highway.
The basic difference between this agreement and a S.38 agreement is that the developer is effectively working as a
contractor to the Highway Authority and is carrying out the works on their behalf. Similar to the S.38 agreement the
developer must put up a bond to cover the cost of the works (as the proposed works are solely to the benefit or consequence
of his development) and will be required to pay supervision fees.
Section 104 - Water Industry Act 1990, Sewer Adoption
Section 104 relates to the construction of new sewers by a developer, to be offered for adoption be the Water Authority
as public sewers. The agreement secures a bond for the cost of the works, to enable completion of the works by the
authority upon default by the developer, usually for reasons of insolvency but occasionally in instances where the
developer has failed to complete the works within a specified or 'reasonable' period of time. The agreement also identifies
fees payable for supervision by the adopting authority.
Upon completion of the works the developer must seek the agreement of the authority to place the new sewers 'on
maintenance'. This is a period of 12 months at the end of which any defects are to be remedied prior to formal 'hand-over'
to the authority as public sewers.
