Section 38 Agreement

Post Grant of Planning Consent - Part Three

Where, as part of a development, it is proposed to construct a new estate road for residential, industrial or general purpose traffic the normal legal means by which the road becomes a public highway is via an agreement under Section 38 of the Highways Act 1980.

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. Work would be expected to be 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 will 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 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.

Require Assistance with a Section 38 Agreement?

Sanderson Associates have extensive experience in assisting our Clients with Section 38 Agreements for a wide variety of major and minor developments throughout the whole of the UK, Isle of Man and Ireland.

We would be pleased to provide you with our competitive fee proposal to provide you with our services, please call us on 01924 844080 or click here to complete our secure online form.

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