What is a Section 38 agreement? Section 38 vs Section 278 explained for developers

Section 38 agreements cover new estate roads that a council will adopt. Section 278 agreements cover changes to existing public highways to enable your scheme. If you are building roads the council will eventually maintain, you need S38. If you are altering a live highway for access, signals, roundabouts, or safety improvements, you need S278. Many developments require both.

Understanding what is a section 38 agreement is crucial for developers planning new infrastructure.

Why this matters: faster adoptions, fewer surprises, and earlier capital release

You want certainty. Delays getting roads adopted lock up bond capital, stall plot completions, and keep your team tied to a site long after sales complete. This guide gives you a clear decision line between S38 and S278, shows the exact steps (and traps) in each path, and outlines how we de‑risk adoption with a fixed‑fee, start‑to‑sign‑off service.

Outcome for you: pick the right agreement early, design to the right standard first time, and close the adoption loop faster so you can move on to the next site with confidence.

Section 38 vs Section 278 at a glance

Simple rule of thumb

• Section 38 (Highways Act 1980) – New roads constructed by a developer that will be adopted by the local highway authority.
  
• Section 278 (Highways Act 1980) – Works on an existing public highway needed to serve your development (e.g., a new junction, signals, or right‑turn lane). You fund the work; the highway remains adopted.
  

Many housing schemes need both: S278 for the access/junction on the existing road, and S38 for the new estate roads inside the red line.

Side‑by‑side comparison (print‑friendly)

Saveable asset: Ask for our one‑page S38 vs S278 comparison sheet as a quick internal reference for your team.

When do you need a Section 38 agreement?

If your layout includes new internal estate roads that the council will maintain in future, you will need an S38. Typical scope includes carriageways, footways/cycleways, kerbs, street lighting, signs, speed control features, surface water drainage, and often landscaping within the highway boundary. Designs must meet the local authority’s adoptable standards. Expect:

1. Technical approval of drawings, specs, and drainage calculations.
   
2. Bond or cash security, usually a percentage of construction value.
   
3. Inspections during construction and a maintenance period before final adoption.
   

Expert note (Ben Sperring, Surfacing & Civils Manager): “Design for adoption from day one. Retrofitting to meet standards costs more time and money than getting it right at planning stage.”

When do you need a Section 278 agreement?

If your permission requires changes to an existing highway to mitigate your scheme’s impact or provide safe access, you’ll need S278. You fund the design, traffic management, and construction under the council’s technical approval and supervision. Common items:

• New priority or signalised junctions, roundabouts, or road widenings,
  
• Footway/cycleway links and controlled crossings,
  
• Speed management and visibility improvements,
  
• Traffic Regulation Orders (TROs) and signage/lining packages.
  

Field reality (Tony Flook, Managing Director): “Programme slips happen at utilities diversions and traffic signal approvals. Lock these down early, or you’ll see weeks evaporate.”

Which agreement applies to your site?

• Works inside your red line creating new streets the council will adopt → S38.
  
• Works on the existing adopted highway to enable access or mitigate traffic → S278.
  
• Mixed schemes (most housing): both. Sequence approvals so S278 access doesn’t block S38 build‑out.
  

The end‑to‑end process (what good looks like)

For Section 38

1. Pre‑app design review against council adoptable standards and parking/visibility policies.
   
2. Submit for technical approval with drainage modelling and construction details.
   
3. Agree bond value, fees, and any commuted sums for non‑standard assets.
   
4. Construct with hold‑points for inspections; capture as‑built records.
   
5. Maintenance period and remedy list (defects period), then final adoption and bond release.
   

For Section 278

1. Safety‑led design concept, Stage 1–2 RSA where required, and utilities searches.
   
2. Submit for technical approval, traffic signal review (if applicable), and agree TM strategy.
   
3. Enter S278 with bond/security, fees, and any TRO processes.
   
4. Build under permit/permissions with accredited traffic management; coordinate utilities works.
   
5. Snag, commission signals, complete Stage 3 RSA, close out.
   

Programme guardrails: Put RSA, utilities, TROs, and signal reviews on the critical path in your MSP or Primavera plan. They are where most S278 time risk hides.

Bonds, fees, and commuted sums: plan the finance, protect the margin

You should assume:

• Highway bonds on both S38 and S278, linked to construction value.
  
• Authority fees for design checks, legal costs, and supervision.
  
• Commuted sums where you include non‑standard materials or assets with higher whole‑life costs (e.g., decorative paving, ornamental lighting, SUDS features). These are one‑off payments to cover future maintenance.
  

Commercial tip: If aesthetics drive non‑standard choices, cost them with commuted sums before you fix the sitewide spec. Swap where necessary to keep life‑cycle costs acceptable to the authority and protect your sales values.

Five common pitfalls that delay adoption (and how to avoid them)

1. Late drainage changes – Re‑submissions cascade into road levels, kerb lines, and RSA. Lock drainage early, including exceedance routes.
   
2. Missing stage gates – Build ahead of approvals or inspections, then face abortive works. Put hold points in the ITP and stick to them.
   
3. Utilities surprises – Uncharted services stop S278 in its tracks. Do early surveys and budget time for diversions.
   
4. Non‑standard materials – Beautiful on paper, expensive in commuted sums. Agree deviations up front or revert to the spec.
   
5. Weak close‑out – Incomplete as‑builts, safety files, or snag lists keep bonds frozen. Assign a named owner for document control.
   

“The cost of rework on highways is never just material and labour. It’s traffic management, night working, and reputational pain. First‑time‑right pays for itself.”
— Tony Flook, Managing Director

Who does what? Roles and responsibilities on S38 & S278

• Developer – Funds the works, appoints designers and contractors, enters into agreements, and maintains S38 assets during the defects period.
  
• Local Highway Authority (LHA) – Sets standards, approves designs, inspects works, and either adopts new roads (S38) or accepts changes to existing roads (S278).
  
• Principal designer/engineer – Delivers compliant design, risk registers, and road safety audit responses.
  
• Principal contractor – Plans and delivers works safely with accredited TM and NHSS/ISO systems.
  

How Highways Plus de‑risks adoption for developers

Your project is our business. We specialise in developer highways, from project enabling works to S278 junctions and S38 estate roads, all the way to final sign‑off. For legacy schemes stuck in limbo, our Backlog Defect Resolution service provides a lump‑sum, fixed‑fee route to adoption so you can unlock your bond capital and close the account.

Why developers choose us

• NHSS and ISO 9001/14001/45001 accredited delivery teams.
  
• One accountable partner for drainage, surfacing, lining/signs, and traffic management.
  
• Proactive council liaison and document control to keep approvals moving.
  
• Fixed‑fee adoption management available on qualifying backlog schemes.
  

Read more: Visit our Services hub for developer highways and adoption support: https://www.highwaysplus.co.uk/services/

Real‑world examples (typical scenarios)

• New 180‑unit scheme: S278 ghost‑island right turn and toucan crossing on the B‑road; S38 network of estate roads with SUDS features. Early agreement on commuted sums avoided late‑stage disputes.
  
• Brownfield infill: S278 signals with complex utilities diversions on a constrained high street; night‑working, TM phasing, and RSA coordination kept the programme on track.
  
• Backlog adoption: Historic development with bond held for years. Our fixed‑fee package audited the defects, executed resurfacing and drainage remediation, and secured certificates for bond release.
  

FAQs: Section 38 and Section 278

Do we always need both S38 and S278?
No. Apartments with a single access might only require S278 works. Most housing estates need both: S278 for the access works and S38 for the internal streets.

How long does adoption take?
It varies by authority and scheme complexity. You control more of the timeline when designs meet standards first time, inspections are booked early, and RSA/utilities are planned onto the critical path.

What triggers the maintenance period for S38?
Usually substantial completion of the works, with a defects period before final adoption. Your agreement will set the exact criteria and documentation.

What is a commuted sum?
A one‑off payment to cover the future maintenance of non‑standard or higher‑cost assets. Agree early if you plan features outside the standard spec.

Can Highways Plus manage our adoption close‑out?
Yes. We can take a legacy site from snag list to certificates under a fixed‑fee Backlog Defect Resolution model, subject to survey.

External resources (useful guidance)

• Kent County Council S38/S278 technical guidance – process and standards overview: https://www.kent.gov.uk/__data/assets/pdf_file/0014/210227/Making-it-Happen-J5-Technical-Assessment-and-Adoption-Section-38-agreement.pdf
  
• Wigan Council: Road adoptions (S38/S278) explainer: https://www.wigan.gov.uk/Resident/Parking-Roads-Travel/Roads/Road-adoptions-s38-s278.aspx
  
• Transport for London: Highway works (signals, traffic assessments, approvals): https://tfl.gov.uk/info-for/urban-planning-and-construction/transport-assessment-guide/highway-works
  

Key takeaways

• Pick the right agreement early: S38 = new adoptable roads, S278 = works on existing highway.
  
• Design to the right standard from the start; late changes eat programme, margin, and goodwill.
  
• Put RSA, utilities, TROs, and signals on the critical path.
  
• Budget for bonds, authority fees, and commuted sums; minimise non‑standard materials unless there’s clear value.
  
• Use a single accountable partner to drive technical approval → build → certificates.
  

Next step: Get the S38 vs S278 comparison sheet. We’ll send you the one‑pager and, if helpful, review your current layouts for adoption risks.

👉 Request the comparison sheet: https://www.highwaysplus.co.uk/contact/

About Highways Plus

Experts in commercial surfacing and civils, accredited to NHSS and ISO 9001/14001/45001. We deliver roads, drainage, junctions, and adoption close‑outs for developers across the South West, South Wales, and the Thames Valley. Your project is our business.