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What is the S278 process?

Our answer is based on the Link team’s collective experience, which includes the design, technical approval and implementation of hundreds of Section 278 agreements across the UK over the past 15 years.

This article outlines the requirements of a S278, breaking it up in the main stages as well as indicating the parties responsible for each.

Under the Highways Act 1980, Section 278 (S278), any person is allowed to enter into a legal agreement with the Local Highway Authority (LHA) to make permanent alterations or improvements to a public highway, associated with a planning consent. Where works seek to include elements of partial dedication of works outside of the existing highway boundary, this can usually be undertaken by the S278 agreement or a hybrid S278 / S38 agreement for accruals. This usually includes the works required to access a proposed development or potential of site mitigations to facilitate traffic flow to and from a development.

In order to reach a point where a S278 agreement can be entered into the following step need to be take to completed the process;

  • Planning Permission granted – In majority of cases, the LHA will only begin considering starting the S278 technical review process once a planning decision notice can be provided.
  • S278 pro-forma/Application Form – Most LHA’s will have a standard application form detailed the initial pertinent information of the works such as description of works, client, estimate cost of the works, programme and various legal details. This is an essential step which will be the commencement point for most of the individual steps noted below.
  • S278 review and inspection fees –  At this stage it is typical that the LHA will request payment of there fees in FULL. This will be to cover the upcoming Technical Approval (TA) and indeed the inspection of the works onsite during construction. See “How much does a S278 cost?” In some cased the LHA may access a partial deposit to begin TA.
  • Technical Approval – The full S278 detailed design package is then prepared (see “What information is required to undertake a S278 design?” and submitted to the LHA for their consideration, review and comment. Link align our S278 design packages with Design Manual for Roads and Bridges (DMRB) Specification for Highway Works (SHW) documents and numbering as well as LHA design standards. To support an informed review of the design we generally consider providing;
    • Pertinent planning information and documents such as Transport Assessment, Decision Notice and Stage 1 Road Safety Audit if completed.
    • Detailed design drawing package 0100 – 1300 series drawings generally, including lighting. Note, some LHA’s have internal lighting design services which typically is the most efficient route for design procurement.
    • Detailed design reports including pavement design and drainage design reports.
    • Utilities Impact Assessment with associated cost, as these are included within the development bond, see S278 agreement matters below. Note, the cost of utility diversions should not be included in the calculation of the LHA fees.
    • Relevant H&S documents such as Designers Risk Assessments.
    • S278 Legal plan showing the works and potential land for dedication.
  • Departures from Standard, which are not generally required and this will be reviewed as part of the technical approval process. Where departures are required, consideration as to whether or not these can be mitigated and / or removed is needed. If they cannot be eliminated, the designer must assess what can be done to limit their impact on road safety and provide justification on their acceptability in the specific context of the works and site specific constraints. These require LHA approval generally under a separate works stream.
  • Road Safety Audit (RSA) – At some point during the detailed design and technical approval sage, a Stage 2 RSA will be required to be undertaken by an independent RSA Auditor. The exact timing will depend on the LHA expectations and requirements, and will generally be once the detailed design is substantially complete to allow a complete review of highway safety concerns. This normally should only be commenced once a DMRB GG119 audit brief has been completed and agreed with the LHA, hence the design should be significantly progressed.
  • Traffic Regulation Order (TRO) – Where designs require legal restrictions on road users to be implemented, such as double yellow marking preventing parking or No Entry, etc, a TRO or amendment of one needs to be completed. This again is a separate works stream and requires consultation with the LHA, public and Police and can generally only be completed once a design is verging on or has received Technical Approval.
  • S278 Agreement Matters – Once Technical Approval has been granted the S278 Agreement can be drafted, this will be the responsibility of the developer and their legal representatives. From the designer and client legal team the following key points are required which would have been initially outlined in the S278 Pro-forma stage, but now requires final confirmation;
    • Client Details of who will be entering into the agreement
    • Description of Works
    • List of Technically Approved Drawings
    • Construction estimate, with utilities itemised
    • Bond either in the form of premium bond or cash bond.
    • Commuted sums for accruals of highway assets only.
    • HM Land Registry for land to be dedicated
  • It is generally advised that the wording of legal agreement is reviewed by the developer’s solicitors in parallel with the technical review process where possible to reduce timescales.
  • Street Works Application – Conventionally this can only be concluded once the S278 has been signed. However, before this, the contractor should begin consulting LHA Street Works to discuss their approach to constructing their works to line up approval for when the S278 is signed. Note, this application competes for road space against all other parties. If a neighbouring development has occupation of the highway, works on the highway will be delayed until these are finished. It is advised that this is commenced at the soonest possible point.
  • Construction – Can only be commenced once all of the above have been completed.
  • Practical Completion – Once the works have been completed a final inspection of the works should be undertaken by the LHA with a Stage 3 RSA undertaken. Upon completion of any snagging works identified, Practical Completion Certificate of the S278 works can be granted. At this point the works are passed onto a 1 or 2 year maintenance period where the client remains liable to for defect due to the design. It is also at this point that generally 90% of the Bond is released. 
  • Substantial completion -At the end of the 1 or 2 year maintenance period, a final LHA inspection is undertaken. At this point a Stage 4 RSA may be considered to be required. If to the satisfaction of the LHA inspector, these works are then formally handed over and fully adopted by the LHA, with the remaining bond released to the developer.

These various stage will vary in their intensity depending on the scale of the works, location, LHA and complexity.

If you are in need of development support through a S278 agreement, our Director Robert Gill will be able to talk more about you needs.

Dec 14, 2023