No Section 38 agreement in place – what are your options?

Last updated: March 11, 2026

Quick answer: If there is no Section 38 agreement in place, your main options are to pursue a retrospective Section 38, keep the road private with a proper maintenance strategy, use a Section 278 agreement for works on the existing adopted highway, or explore a Section 228 route where the highway authority is willing and the legal conditions fit. The best route depends on whether the road is new or existing, whether it is built to adoptable standard, and how much legal, technical, and financial risk you can tolerate.

Key takeaways

• No Section 38 agreement does not always mean the project is stuck, but it usually means risk has increased.
• A retrospective Section 38 is often the first option to test if the road can still meet adoptable standards.
• If works affect an existing adopted highway, a Section 278 agreement route may be the correct mechanism instead.
• A road can stay private, but you need clear ownership, rights of access, drainage arrangements, and a funded maintenance plan.
• Section 228 can be relevant in some private street cases, but it is authority-led and not a simple substitute for Section 38.
• Missing paperwork is rarely the only problem. The real issue is usually a mix of design gaps, inspection failures, drainage, utilities, and commuted sums.
• Early technical review saves time. We often find the fastest route starts with a defect audit and adoption gap analysis, not legal letters.
• For developments already in difficulty, choose the option that best protects sales, lender confidence, and future maintenance liability.

What does it mean if there is no Section 38 agreement in place?

A missing Section 38 agreement usually means a new estate road has not been formally secured for future adoption by the local highway authority. In practical terms, the road may remain private unless you put another legal and technical solution in place.

A Section 38 agreement is the standard route under the Highways Act 1980 for new roads that a developer wants the authority to adopt. If that agreement was never entered into, or it was started but not completed, several problems can follow:

• the road may not be maintainable at public expense
• the authority may refuse to adopt until defects are fixed
• homeowners, management companies, or landowners may inherit future liability
• lenders and buyers may raise concerns during plot sales or refinancing
• drainage, lighting, signs, and verges may sit in legal limbo

If you need a refresher on the basics, see our guide to what a Section 38 agreement is and why it matters for developers.

Common mistake: treating the issue as just a legal document problem. In reality, highway authorities usually want proof of compliant design, inspections, as-builts, testing, and completed works before they will move.

“The fastest way out of adoption trouble is usually a clear facts-first review. You need to know what was approved, what was built, and what is still missing before choosing a legal route.”
Ben Sperring, Surfacing and Civils Manager

What are your no section 38 agreement options?

Your no section 38 agreement options usually fall into four broad categories: retrospective adoption, private road retention, Section 278 for adopted highway interfaces, or a private street process such as Section 228 in the right circumstances.

That sounds simple. It rarely is.

Here is the practical view:

Choose a retrospective Section 38 if:

• the road serves multiple plots or future occupiers
• the authority is open to adoption in principle
• the road can be brought up to standard at sensible cost
• plot sales, lender requirements, or long-term estate strategy favour adoption

Choose private retention if:

• the road was never designed for adoption
• geometry, construction depth, or drainage make adoption unrealistic
• a robust estate management model already exists
• the long-term owner is willing to carry maintenance risk

For developers dealing with delays, our Section 38 adoption timeline guide explains where time is usually lost and how to cut it down.

Can you get a retrospective Section 38 agreement after works have started or finished?

Yes, sometimes you can secure a retrospective Section 38 agreement, but only if the highway authority is satisfied that the road can meet its adoptable standards and supporting documents can be produced. The earlier you act, the more options you usually keep.

In our experience, a retrospective route works best when the site team can still gather evidence. Once contractors, designers, and utility records disappear, the cost of proving compliance rises fast.

🔍 What the authority is likely to ask for

A highway authority may request:

• approved planning and highway drawings
• construction details and specification
• inspection and testing records
• as-built drawings
• drainage layouts and outfall details
• street lighting information
• utility plans and easement details
• Stage 2 or Stage 3 safety audit material where relevant
• remedial works proposals
• a bond or other financial security

This is where a joined-up review helps. Adoption often fails because road, drainage, and utility information sit in different folders with different parties. If drainage is also unresolved, our pages on Section 104 sewer adoption and drainage solutions and SuDS drainage adoption are worth reading next.

A practical example

We often see schemes where the wearing course was laid, plots were sold, and only then someone realised the bond had never been agreed. The route back was not legal theatre. It was a site audit, core testing, drainage tracing, snagging, then a commercial negotiation on defects and commuted sums.

That kind of reset is frustrating, but fixable.

“Developers lose time when they wait for certainty before opening discussions. Start with a technical due diligence review, then approach the authority with a credible plan.”
Tony Flook, Managing Director

When is Section 278 the right alternative instead of Section 38?

A Section 278 agreement is the right route when your works affect the existing adopted highway, not when you are trying to adopt a newly built internal estate road. In short, Section 278 changes the public road; Section 38 adopts the new road.

This distinction matters because many stalled schemes contain both types of work:

• a new internal access road on private development land
• a new junction, crossing, visibility improvement, or tie-in on the existing highway

If no Section 38 agreement exists, do not assume Section 278 can replace it for the whole scheme. It cannot.

🚧 Typical cases where Section 278 applies

• new site access onto an adopted road
• ghost island right-turn lanes
• signal upgrades
• footway widening
• new crossing points
• utility diversions in the highway
• road safety changes required by planning

If your issue sits at the site boundary or involves off-site access works, see our guides to Section 278 agreement works and Section 278 utility diversions.

Edge case: a development may need both agreements. Section 278 handles the off-site highway works; Section 38 handles adoption of the new internal road network. Missing one can still block completion.

Can you keep the road private if there is no Section 38 agreement?

Yes, you can keep the road private if the legal structure, access rights, and maintenance arrangements are clear. But a private road is not a cheap way to avoid decisions. It simply shifts future responsibility away from the authority and onto owners or managers.

Private retention can be sensible on certain schemes, especially where adoption was never realistic. The problem comes when the road was expected to be adopted, but no one planned for long-term private ownership.

🧾 What you need if the road stays private

At a minimum, check:

• who owns the road and subsoil
• who has rights to use it
• who maintains surfacing, footways, signs, lighting, drainage, and verges
• how maintenance costs are recovered
• whether a management company is funded and enforceable
• whether emergency and service access rights are secured
• whether purchasers were told the road would remain private

A private road strategy should also include a maintenance plan. If defects already exist, our backlog defect resolution and adoption management support can help frame the remedial scope before liabilities spread.

Quick rule: keep the road private only if the long-term owner accepts lifecycle cost and legal control duties. If sales, lenders, or occupiers expect public adoption, private retention may create more problems than it solves.

What is Section 228 and when might it help?

Section 228 of the Highways Act 1980 can help in some private street situations where a street has been made up to a satisfactory standard and the highway authority proposes to declare it a highway maintainable at public expense. It is not a simple developer-led substitute for Section 38, but it can be part of the picture when no Section 38 agreement exists.

This route is less familiar to many developers because it depends heavily on the authority’s position and the condition of the street.

⚖️ Where Section 228 may come into play

• the street is currently private
• works have been carried out to a satisfactory standard
• the authority is willing to engage the statutory process
• frontagers and cost recovery issues can be managed where relevant

There is also a related private street works context where a highway authority may carry out works and recover costs from frontagers. That can become contentious quickly, especially on legacy sites.

Common mistake: assuming Section 228 is quicker or easier than Section 38. Often it is not. If the road has defects, drainage gaps, or title issues, those still need solving.

How do you choose the best no section 38 agreement options for your site?

The best no section 38 agreement options depend on four things: road status, build quality, commercial pressure, and authority appetite. Start with facts, not assumptions.

A quick triage framework helps:

1. Is the road new or existing?

• New internal road: Section 38 is usually the right adoption route.
• Existing adopted highway works: Section 278 is usually the right route.

2. Is the road built to adoptable standard?

Check levels, formation, pavement build-up, kerbs, drainage, lighting, visibility, signs, markings, and testing records.

3. What is the commercial pressure?

If sales are stalled, lenders are nervous, or occupiers need certainty, adoption may be worth the remedial cost.

4. Will the authority engage?

Some authorities are pragmatic if you arrive with evidence and a funded remedial plan. Others will insist on full compliance before moving.

A practical checklist

• gather drawings, approvals, and inspection records
• compare built works against adoptable standard
• identify defects and missing information
• separate Section 38 issues from Section 278 issues
• review drainage and utility adoption interfaces
• cost remedial works and commuted sums
• assess private road fallback position
• agree legal and commercial strategy

For cost pressure, our guide to commuted sums negotiation and reduction can help you understand where negotiation may be possible.

What problems do developers usually miss?

The biggest missed issues are usually drainage, records, and responsibility gaps, not asphalt alone. A road can look finished and still fail adoption.

Here are the traps we see most often:

• no bond was ever put in place
• road levels do not match approved drawings
• drainage outfall rights are missing
• SuDS features were built but not maintainable under the intended model
• utility apparatus clashes with adoptable highway limits
• footways, tactile paving, or visibility splays are non-compliant
• as-built drawings do not exist
• sales packs told buyers the road would be adopted, but the paperwork says otherwise

“If a road is left outside adoption, somebody still pays. The real financial question is whether you fund a controlled fix now or carry an open-ended liability later.”
Kerry Hopper, Finance Director

One more point. Do not review surfacing in isolation. If reconstruction is needed, linked enabling works matter too. Our pages on project enabling works and site preparation and commercial surfacing for developers cover the delivery side.

What should you do in the next 30 days if no Section 38 agreement exists?

In the first 30 days, your aim is to stop drift, protect evidence, and define the least-risk route. Waiting usually makes the file harder and the fix more expensive.

🛠 A 30-day action plan

1. Confirm the legal position

   • Was a Section 38 ever drafted, agreed in principle, or bonded?
   • Is there a planning condition tied to adoption?

2. Audit the technical file

   • Collect drawings, tests, inspections, utility and drainage records.

3. Inspect the site

   • Identify visible defects, incomplete items, and departures from approved design.

4. Split road issues from drainage issues

   • Many delayed adoptions are really drainage adoption problems in disguise.

5. Open a structured conversation with the authority

   • Ask what route they will consider and what evidence they need.

6. Cost your options

   • Retrospective Section 38, private retention, Section 278 interfaces, and remedials.

7. Protect the commercial position

   • Update legal advisers, funders, and sales teams with a realistic timeline.

If you need a practical starting point, Highways Plus often helps clients with the gap between design intent and adoptable delivery through civil engineering services from design to adoption and direct project support conversations.

FAQ

Can a local authority refuse to adopt a road if there was no Section 38 agreement?

Yes. Without a Section 38 agreement, the authority is not usually obliged to adopt a new estate road, even if it looks complete. Adoption normally depends on legal agreements, standards compliance, and supporting evidence.

Is Section 278 a replacement for Section 38?

No. Section 278 covers works to the existing adopted highway, while Section 38 is used for adoption of new roads. Some developments need both.

Who pays if a road stays private?

The owner, management company, or benefiting parties usually pay, depending on the legal setup. If documents are unclear, disputes over maintenance contributions are common.

Can homeowners be affected by a missing Section 38 agreement?

Yes. Homeowners may face uncertainty about maintenance, drainage, road condition, and service charge liability. It can also affect resale and lender enquiries.

How long does a retrospective Section 38 take?

It varies by authority, site condition, and quality of records. A clean file with limited defects can move relatively quickly, while legacy sites with missing evidence can take months.

What is the first document I should look for?

Start with the planning approval and any highway-related condition, then check for draft legal agreements, technical approvals, and bond correspondence. Those documents usually reveal what was intended and what went missing.

Conclusion

If there is no Section 38 agreement in place, you still have options, but you need to choose them with care. The strongest no section 38 agreement options are usually a retrospective Section 38 where adoption is still realistic, a Section 278 for works on the existing highway, a properly structured private road arrangement, or in some cases a Section 228 process where the authority is prepared to act.

The key is to avoid vague hope.

Start by confirming road status, auditing the technical record, pricing remedial works, and testing the authority’s position. Once those facts are clear, the right route usually becomes obvious. If the road needs to be adoptable, work backwards from authority standards. If private retention is the better outcome, document ownership, rights, and maintenance before liability spreads.

If you want a second opinion on a difficult site, Highways Plus takes a practical, problem-solving view. The goal is simple: get you from uncertainty to a workable route with less delay, less rework, and fewer surprises.