Developer Guidelines - Highway Legal Agreements
Adopted 2024
In order to secure either adoption of new highway infrastructure or to undertake alterations/improvements to the existing public highway as part of a new proposed development, it will be necessary for a developer to enter into a Legal Agreement with the Highway Authority. In respect of the adoption of new infrastructure this would be by way of a Section 38 Agreement of the Highways Act 1980 whilst changes to the existing highway are secured and delivered through a Section 278 Agreement.
These guidelines are intended to assist developers in outlining the overall process relating to entering into of a Section 38 and 278 Agreement with the Local Highway Authority from the Planning Application stage through to final adoption/completion. This Flow Chart also outlines the various stages of Highway Legal Agreements and should be read in conjunction with these guidelines.
Adopted and Private Roads
An adopted road is a road for which Plymouth City Council (PCC), as the Local Highway Authority (LHA), are responsible for all the required maintenance and safety issues.
A private road can be an existing road that has not been offered for adoption or a new road that has not yet been completed to the appropriate standard required by the LHA for adoption. The required maintenance and safety issues are the responsibility of the developer and/or owner until a road has been adopted. Roads offered for adoption under Section 38 remain private until a final certificate of adoption is issued and the agreement is completed.
List of roads maintained by the Council
In respect of Section 38 Agreements, the following document produced by the DfT – Highway Adoptions: the adoption of roads into the public highway (1980 Highways Act) provides further detailed information in relation to the process.
Adoption of roads by highway authorities
These guidelines set out the process relating to Highway Legal Agreements, starting with Planning and Design.
Planning and Design
In most cases, the construction of new areas or amendments to existing highway infrastructure will require a planning application. We welcome pre-application enquiries and will provide advice before you submit a planning application (which includes specific highways advice). There is a charge for using the pre-planning service.
The street and highway network features and design are largely agreed through the planning process. All information and advice on the planning process, making a planning application and related issues are available on our Planning webpage.
You should review the comments of the Transport Planning Officer on the planning application relating to the layout of the new roads/footways and any planning conditions attached to the grant of planning consent.
Good quality design and adherence to agreed standards is essential for creating a road network which has the ability to function safely for all highway users. A range of local and national guidance exists in relation to the design of new roads and streets or where changes are proposed to existing highway infrastructure.
Our adopted Design and Guide and agreed Specification for Highway Works for all highway works taking place within the city is the publication Highways in Residential and Commercial Estates – Design Guide (produced by Devon County Council).
The approach to the design of space between buildings has evolved away from the traditional dominance of the engineered carriageway. There is now a recognition that the public realm has many wider functions than just the movement of vehicles. This has been recognised in the national launch of the Manual for Streets documents 1 and 2. We encourage developers to use these documents when considering the layout of new residential streets.
- Manual for Streets (MfS) provides guidance about the design, construction, adoption and maintenance of new residential streets. Designing and modifying residential streets
- Manual for Streets 2 (MfS2) builds on the principles set out in the original MfS and provides further guidance on busier streets and roads in both urban and rural locations. Designing and modifying non-trunk roads and busy streets - GOV.UK
- The National Design Guide. The National Design Guide addresses the question of how we recognise well designed places, by outlining and illustrating the Government’s priorities for well-designed places.
We fully endorse the design principles as set out in both MfS publications. In addition, for changes to or where works are proposed on busier roads which have either an ‘A’ or ‘B’ road classification, it maybe necessary for the designer to refer to the Design Manual for Roads and Bridges (DMRB) which provides national design standards for highways.
Technical Approval
In order to allow the Highway Authority to enter into either a Section 38 or 278 Agreement, it will be necessary for details to be submitted to secure technical approval in accordance with Plymouth City Council’s agreed Specification for Highway Works
Upon securing planning permission for new development where new highway infrastructure is proposed or changes to the existing highway are required to facilitate access etc, the developer will be required to submit a Highway Agreement Application form which can be downloaded on our webpage: Roads maintained by the Council
This completed form should be accompanied by a full set of technical drawings for consideration along with a non-refundable deposit. The non-refundable deposit is calculated on the basis of the total cost of the highway works in accordance with our sliding scale of charges (see Section 3) and is deducted from the final Inspection Fee.
The following Technical Guidance Notes provide specific guidance in relation to the following areas (these documents and links to them can be found below under each relevant section):
Submitted drawings will be subject to a design and check process to ensure compliance with agreed specifications. This may require revisions to plans, depending on the quality and completeness of the initial submission. It is the applicant’s responsibility to ensure that a suitably qualified and competent designer is appointed for producing such drawings and specifications.
A Technical Approval Checklist:
Traffic Regulation Orders
Traffic Regulation Orders (TROs) can often be required for new developments as a result of new restrictions or for changes to existing highway infrastructure (parking restrictions, speed limits, prohibited movements such as no right/left turns etc). Implementing a new TRO is a lengthy process and therefore the need for such should be identified as early as possible in the design process.
On average a timescale of at least 6-9 months should be allowed for a new TRO to be made. This time is required in order to undertake consultation with council members and formally advertise the TRO to provide the public with an opportunity to comment. Depending on the comments received the proposals might have to be amended and can even be rejected.
Planning approval for a development does not guarantee that the TROs will be made. All TROs need to be sealed prior to the completion of the development. TROs are funded by the developer who is required to pay an initial £5,000 although the cost can vary from £3,000-£12,000 depending on the number and complexity. Street names are usually required to process a TRO and should be confirmed at the earliest opportunity:
Street Lighting Design/Check
As the Highway Authority, we require developers to provide a compliant street lighting installation (unless otherwise agreed in writing) as an integral part of the development that is to be adopted and maintained at public expense, that makes use of materials duly approved and correctly selected from the specification list and installed to the relative manufacturers and our specification:
A review of the submitted Street Lighting Design will incur a fee, with the amount of fee depending on the extent of review work required. Alternatively, we will undertake the Street Lighting Design on behalf of the developer for a set fee. contact us for further details.
Where a developer chooses to use an Independent Distribution Network Organisation (IDNO) for the electricity supply to the development, a service level agreement (SLA) shall be entered into by the IDNO and PCC to ensure the supply to the street lighting columns, traffic signs, traffic signals, feeder pillars, etc.
Highway Structures/AIP’s
New highway structures including retaining walls, culverts, subways etc proposed as part of a Highway Legal Agreement shall be designed and constructed in accordance with PCC’s Guidelines for the Technical Approval of Highway Structures. Design and Check Certificates should be provided as outlined in the guidelines:
Fees incurred as a result of the review of any highway structures (retaining walls, culverts etc) submitted for approval will be recoverable on a site-by-site cost basis.
Traffic Signals/CCTV
All new traffic signal installations (primarily in respect of Section 278 Agreements) should be in accordance with PCC’s Specification for Traffic Signal Equipment and Installation.
Road Safety and Non-Motorised Road User Audits
Where changes are proposed to be made to the existing highway network (Section 278 Agreement), it is likely that a Road Safety Audit (RSA) will be required. The scope of the RSA will need to be agreed by PCC and undertaken in accordance with GG119 of the DMRB. Whilst there are four different stages for a RSA, depending on the scale of the highway works, Stages 1 and 2 may be combined.
The RSA should be submitted as part of the initial submission of the information and documents for the purposes of Technical Approval. A fee for a review of the Safety Audit may be required.
In addition to an RSA, a Non-Motorised Road User Audit (NMRUA) will also be required as part of a Section 278 Agreement. A non-motorised user audit considers how highway schemes or developments coming forward may impact upon the ability of pedestrians, cyclists and disabled users to either continue to use the highway or access the development coming forward. A NMRUA also identities any opportunities to improve or enhance travel by non-motorised modes. Details of the process to follow in relation to the preparation of a NMRUA:
Developer Consultation
During the planning process, applications are consulted upon in line with planning legislation. However, at this stage proposals may be in outline form and consequently insufficient detail exists for the public and other interested parties to provide comments on those proposals and any associated impacts.
In relation to those schemes subject to a Section 278 Agreement where changes are proposed to the existing highway network, PCC encourages any applicants who are not already required to do so by law to engage with the local community and, where relevant, with statutory and non-statutory consultees, before submitting their applications, particularly if it was the view of the LPA that it would be in the interests of the wider public to undertake further consultation on those proposals. Such confirmation to be provided in writing by the LPA no less than 4 weeks after the first initial submission of plans.
Details of the format of the consultation process including timing of such, venue (if held in person) and associated communications shall need to be agreed in writing with the LPA.
Further Guidance is available to view within PCC’s Statement of Community Involvement which includes key principles and guidance for designing consultation programs (sections 2 and 3):
Adopted Statement of Community Involvement
Legal Process
Upon granting of Technical Approval, a draft Legal Agreement will be prepared by the Legal Department within Plymouth City Council. A blank copy of the draft Legal Agreements used by Plymouth City Council can be provided on request.
Where minor alterations are required to the public highway as part of a development proposal (sections of footway, mini-roundabout etc), a shortened form of S.278 Agreement may be acceptable.
In order to instruct the drafting of the Legal Agreement, the following information should be submitted:
- 4 Copies of all technically approved plans (both in paper and electronic format)
- 4 Copies of a small-scale location plan showing the extent of the land within the ownership of the developer edged in red (both in paper and electronic format)
- Details of the Solicitors instructed by the developer (including name, address and email contact details)
- Title information for the site (if owned by the developer).
- Details of Surety in relation to the Bond in support of the Agreement.
- Detailed Bill of Quantities from the developers approved contractor in relation to the costing of all works associated with and covered by the Legal Agreement (it is acknowledged that such data is financially sensitive and therefore will be treated accordingly).
Bonds
A Bond based upon the overall cost of the road works (see information below on Fees Policy) is required in support of both S.278 and 38 Agreements. This Bond can either be in the form of surety (such as NHBC) or a cash/cheque deposit (particularly in relation to smaller schemes).
Advanced Payments Code (APC)
The Advance Payments Code (APC) Sections 219-225 of the Highways Act 1980 applies to the whole of Plymouth. An APC Notice will be served by the Highway Authority on the landowner (or the person erecting the dwellings if different) following approval (Full Plans, Full Plans subject to conditions) or acceptance (Initial Notice, Building Notice) of any Building Regulations application where the site consists of more than five dwellings or is capable of serving more.
The Highway Authority has six weeks from the date of the initial Building Regs Notice to serve the APC. It ensures that before building work starts that a sum of money will be deposited with the Highway Authority by the landowner (or the person erecting the dwellings if different). This reduces the liability on any future purchasers if their street is not finished for any reason. When development has reached a certain stage, frontages are able to require the carrying out of street works and adoption of the street(s). This is described in Section 219 to 225 of the Highways Act 1980. The APC Notice will also be registered on the Local Land Charges Register and is transferred with the land if the whole development, or a part of it, is subsequently sold.
The APC deposits are returned and the local Land Charge Authority notified if a Highways Act 1980 Section 38 Agreement is entered into. This is because the Section 38 provides for the adoption of the street(s) and has its own surety although in some instances the surety deposited under APC is transferred to the Bond in support of the Section 38 Agreement.
If the Developer wishes the development to remain private then PCC will require the Developer to ensure that all purchasers are party to a management company maintaining the private roads and that prospective purchasers are advised that the Highway Authority will ultimately have no obligation to make the roads up and maintain them at public expense.
Fees Policy
Details of the charging policy in relation to Highway Legal Agreements can be found in the Strategic Planning and Infrastructure Fees Policy document:
Strategic Planning and Infrastructure Fees Policy
Inspection Fee’s in support of Highway Legal Agreements are based upon a sliding scale calculated on the basis of the total cost of those works which are subject to the Legal Agreement. Details of these fees can be found in the above-mentioned document.
In addition to the Inspection Fee, other fees may be required in support of the Legal Agreement which are as follows:
Commuted Sums
Commuted sums are required to cover the cost of future long-term maintenance costs associated with specific items which are considered to be ‘over and above’ what the Highway Authority could reasonably be expected to adopt and maintain. Such items could include but not be restricted to:
- Traffic Signals/CCTV
- Retaining Structures
- Sustainable Drainage Solutions (SUDS/Soakaways)
- Bespoke Highway Infrastructure (Benches, Bollards, Ornate Lamp Columns etc)
- Tree Planting/Landscaping
Commuted sums will be calculated on a site-by-site basis. In relation to drainage measures and retaining structures, fees will be based upon cost of total replacement unless an alternative sum is agreed in writing by PCC.
Construction Phase
Upon the granting of full Technical Approval, signing of the Legal Agreement and payment of all outstanding fees, works will be permitted to commence on-site.
The developer must provide sufficient notice of the intention to commence the works. This shall be made in writing to PCC’s proper officer not less than 10 working days prior to the intended start date on-site.
If not already required by a planning condition, there is also a requirement to submit to the LHA for approval a Dilapidation Survey, the details and extent of which shall be agreed by PCC’s proper officer.
Permission must also be sought to carry out work in the public highway by way of a suitable license or notice under S50 (of the New Roads and Street Works Act 1991) to install new apparatus in the highway or S.171 for the undertaking or carrying out of works in, across or on the highway. As part of this process construction methods and temporary signage for the safe management of both vehicular and pedestrian traffic will need to be agreed and so development-related works can be coordinated with other works in the area, such as our highway re-surfacing or utility works in the ground. Programmes for Planned Works relating to Carriageway, Footway, Drainage and Traffic Signals:
Accredited Contractors
We do not maintain an accredited contractor schedule however any contractors working on the public highway must be accredited to do so. All accreditation is checked at the point of application for these adoptable highway works and other works on the existing public highway.
Initial Works
In order to protect the existing public highway the developer shall construct the first twenty metres of estate road up to and including base course construction before any development construction commences. This will generally require a Section 184 licence to create a new vehicular access.
Road Opening Licence or Notice (Section 171 and 50 New Roads and Street Works Act 1991)
Any work in the public highway requires the approval of the highway authority before commencement of any such works. Whilst the S278 agreement sets out the terms under which the existing road may be modified, a S171 is required to book the road space (ensuring no clashes with other contractors) and check Street Works accreditations and public liability insurance. A Section 50 licence will be required if you are installing or connecting to services within the public highway. Information on applying for Highway Licences and Permits:
Apply for highways permits and licenses
Licence to create or amend a vehicular crossing over a footway or verge to gain access to the public highway (Section 184)
Where any land abutting the highway is being, or is to be, developed the developer or persons undertaking the works may apply to construct or improve a crossing over a kerbed footway or verge to gain vehicular access to and from the highway. Where a new vehicular access is required on a classified road planning permission will be required ([email protected]).
Further information in relation to obtaining permission for dropped kerb crossings:
Chapter 8: Traffic Signs Manual 2009
The full proposals for temporary signs and traffic signals in accordance with Chapter 8 of the Traffic Signs Manual 2009 must be submitted for review and approval in advance of any works.
Protection of the Public
The developer shall carry out the works in such a manner as will not interfere with the passage of traffic or pedestrians, and shall erect and maintain adequate hoardings, barriers, and warning lamps to safeguard the public. Access shall be maintained at all times.
Existing roads to be kept clean
Existing roads and accesses to adjacent houses, buildings etc., used by construction traffic, shall be kept clean and clear of mud and material dropped from vehicles. Mud, slurry or material brought onto the road as a result of carrying out the works shall be removed immediately by brushing or other approved means. If required by the proper officer wheel washers shall be installed and used by every vehicle leaving the site, this does not relieve the developer from any responsibilities under Section 59 of the Highways Act 1980.
Site Inspections
Inspection of works will normally be carried out on Monday to Friday during normal working hours (8am to 6pm). A minimum of 48 hours notice is required for inspections by the proper officer. In exceptional circumstances works can be carried out and inspected out of hours when specifically agreed by the proper officer. A minimum of ten working days notice will be required to enable any such request to be considered.
Works Completion/Adoption
The adoption process under Section 38 is normally split into three stages referred to as Parts 1, 2 and Final. Certificates are issued on completion of each stage.
The adoption process for highway agreements under S278, which may be appended to a Section 106, agreement has two stages. The process is the same as for S38 (as set out below) but without a stage 1.
Throughout the whole process the developer has the role and responsibilities of street manager to maintain all the works until the issue of the final certificate.
Part 1 Certificate (Section 38 only)
Upon receipt of confirmation that all highway works set-out in Part 1 of the Schedule included in the Section 38 Agreement have been completed, the developer may request, in writing, a Part 1 inspection. Subject to confirmation from the LHA’s inspector that such works have been completed to their satisfaction, the Part 1 Certificate will be issued and the value of the Bond (secured in support of the Legal Agreement) reduced to 50% of its value.
Newly constructed buildings must not be occupied prior to the issue of the Part 1 certificate if they are accessed from the works which are subject to that S38 Agreement.
Certificate of Completion (Part 2 for Section 38)
In respect of Section 38 Agreements, once all works outlined in Parts 1 and 2 of the Schedule of works included in the Agreement have been completed, a development may request, in writing, a Part 2 inspection. Subject to confirmation from the LHA’s inspector that such works have been completed to their satisfaction (including any remedial works identified), the Part 2 Certificate will be issued and the 12-month maintenance period will commence. The level of Bond in support of the Agreement will be reduced to the amount as specified in the signed Agreement (usually 10% of the Bond).
In respect of Section 278 Agreements, upon confirmation from the LHA’s inspector that all works subject to the Agreement have been completed to the satisfaction of the LHA (including any remedial works), the Certificate of Completion for the works shall be issued and the amount of retained Bond reduced to the figure as outlined within the signed Legal Agreement (usually 10% of the total bond).
Final Certificate (Section 278 and 38 Agreements)
On satisfactory completion of the 12-month maintenance period (which is required for both Section 38 and 278 Agreements) a final inspection of the works by the LHA’s highway inspector will take place. Subject to all works being to the satisfaction of the LHA, the Final Certificate will be released and the Legal Agreement discharged. However, this can only take place if all obligations included within the Legal Agreement have been satisfied (this includes payment of all fees secured through the Agreement) along with the following:
- In respect of Section 38 Agreements, confirmation of the vesting of any sewers subject to a Section 104 Agreement;
- Submission of a Health and Safety file including detailed topographic ‘as-built’ survey drawings of the works as adopted;
- All CDM files associated with the design and delivery of the works;
- Detailed asset record of all highway features including testing/inspection certificates relating to street lighting, traffic signals and structures;
- CCTV as-built survey of all highway drainage being adopted.
Adoption
Upon release of the Final Certificate (as mentioned above) the developer will be released from their obligations under the terms of signed the Highway Legal Agreement and the agreement discharged. In respect of Section 38 Agreements, any new areas of highway to adopted will be added to the Highway Register. Further details relating to this process can be provided by speaking to the Highways Technical Support Team – [email protected].