Post Grant of Planning Consent

Section 38 Agreement

Where, as part of a development, it is proposed to construct a new estate road for residential, industrial or other purposes, the normal legal means by which the road becomes a public highway is via an agreement under Section 38 of the Highways Act 1980. Further advice on the highway adoption process is also available from the Department for Transport.

Once the new estate road construction has been completed and has satisfactorily attained its provisional maintenance period (usually one year from opening for public use) it is adopted by the Local Highway Authority as a public highway. “Adoption” means that the Local Highway Authority takes over all future responsibility for the highway works and that it becomes part of the public highway with all inferred rights.

Section 38 Agreements are negotiated between the Local Highway Authority’s engineer and the developer's Highway Engineer and plans showing all elements of construction and specifications are provided. These plans and details will be of the same type as those required for highway improvement works under a Section 278 Agreement. Similarly a bond will be required between the developer and the Local Highway Authority to ensure that the proposed works can be satisfactorily completed in the event of any default or unforeseen occurrence.

Local Authority engineers will inspect the work on site at key construction phases and the Highway Engineer will often be involved in general setting out and day to day site supervision. Section 38 works are subject to the Construction (Design and Management) Regulations (CDM 2015).

Changes to Public Rights of Way and Highway Closures

Some development proposals may affect existing public rights of way (footpaths or bridleways) or existing public roads. Early discussions with the Local Planning and Highway Authority followed by research at the time of the Transport Assessment should have identified these issues and the most appropriate manner to deal with them.

Public rights of way may potentially be diverted or closed in favour of an alternative route and where for example public roads are redundant they can be formally closed (stopped up). Procedures are available under both the Highways Act and the Town and Country Planning Act to effect these changes and the Highway Engineer will often take a role in the application procedure and producing the necessary documentation.

Even though planning permission has been granted for a development the public has a right to comment and potentially object to a change to a public right of way or the stopping-up of an existing public road and the Highway Engineer may be required to provide evidence at a public inquiry or Magistrates Court in support of the proposed change.