Section 278 Agreement

 

A Section 278 Agreement covers works to the road that is already there. If your development needs a new junction onto an existing public highway, a right-turn lane, traffic signals or a crossing, that is normally secured through an agreement under section 278 of the Highways Act 1980 with the authority responsible for maintaining that road.

The distinction people get wrong is this: a Section 278 covers works to the existing highway. A Section 38 covers a new road you are building that you want adopted. Many larger housing schemes need both, but only where works are required to the existing highway and the development also contains new roads intended for adoption.

 

 

Who actually does the work

 

Section 278(1) is framed as an agreement for works to be executed by the highway authority, with the developer paying all or part of the cost. That does not give a developer a free-standing right to alter the public highway merely because planning permission has been granted.

In practice, many agreements allow an approved developer’s contractor to carry out the physical work under the authority’s control, specification and inspection regime. The precise arrangement depends on the highway authority and the agreement. That legal framework explains why the technical approval, inspection and sign-off provisions are so detailed.

 

The public benefit test

 

A highway authority may only enter into a Section 278 Agreement if it is satisfied the agreement will be of benefit to the public. That is not a formality bolted on at the end — it sits in subsection (1) as a precondition of the power itself.

It rarely bites on a scheme where the works are needed to make a development acceptable, because works that make development acceptable are generally of public benefit. But it is worth knowing the test exists. An authority is not obliged to agree to works simply because you are willing to pay for them, and the question it must ask itself is about the public, not about you.

 

What kind of works need one

 

Permanent alterations to an existing public highway that are needed to serve or mitigate a development are commonly secured through Section 278. Typical examples include:

• a new or altered access into the development site
• roundabouts
• priority junctions
• junctions with traffic signals
• right-turn lanes
• improvements to existing junctions
• improved facilities for pedestrians and cyclists
• traffic calming
• new or altered signalised crossings near the site

Which authority you deal with depends on the road. For most development it is the local highway authority — the county or unitary council. Where the works touch the strategic road network, it is National Highways instead, and that is a different process with a different appetite.

 

How a Section 278 gets triggered

 

You rarely volunteer for a Section 278. It arrives in one of two ways, and both trace back to your planning permission.

A planning condition may require the highway works to be completed, or at least secured, before development starts or before occupation. Or a Section 106 may oblige you to enter into a Section 278 and complete the works to a timetable.

That is the practical trap. The highway agreement is often not an optional extra but the mechanism by which your permission actually gets implemented — and it involves a separate authority, on a separate timescale, with its own technical approval process. A permission that looks granted can sit unimplementable for months while a Section 278 is negotiated. Start early.

 

Section 278 or Section 184 — dropped kerbs are different

 

If you are a householder wanting to park on your front garden, you are almost certainly not looking for a Section 278.

A dropped kerb — a vehicle crossing, or crossover — is dealt with under section 184, and the highway authority decides whether you get one. Drive over the kerb without one and the authority can serve notice, build the crossing anyway and recover its costs from you. See our page on dropped kerbs.

Two points that surprise people: you have no right to a vehicle crossing, and the default answer on many roads is no, because each new access is a new conflict point. You pay for the design and the construction, and the authority maintains the crossing afterwards.

You may also need planning permission for the crossing itself, depending on the classification of the road, and you may need a separate licence to excavate in the highway. Ask the authority before you assume the dropped kerb is the only consent you need.

Rule of thumb: a domestic driveway is a Section 184. A junction serving a development is a Section 278.

 

What a Section 278 Agreement costs

 

Section 278(2) is unusually explicit about what “the cost of the works” means, and it is broader than the works. The authority may recover:

• the whole of its costs of making the agreement itself
• the costs of making or confirming any scheme or order needed for the works — a traffic regulation order, for instance
• the costs of obtaining any authorisation, permission or consent needed
• the cost of acquiring any land needed for the works
• all relevant administrative expenses, including an appropriate sum for general staff costs and overheads

That last one is the one to notice. Staff costs and overheads are expressly recoverable, which is why a Section 278 quote is always more than the cost of the tarmac. Add to that the design, the road safety audits, the inspection regime, a bond or surety, and a commuted sum where the authority wants one for future maintenance — subsection (3) expressly allows the agreement to provide for maintenance payments.

We do not print figures because there is no national rate. Each authority sets and revises its own charges. Ask the relevant highway authority for the current schedule, in writing, at an early stage.

None of this has anything to do with your planning application fee, which is a separate regime and separately payable.

 

What happens if you do not pay

 

Section 278 has teeth, and they are worth understanding before you sign.

If an amount due under the agreement is not paid, the authority may direct that the access or facility the works provide is not to be used until it is. If that direction is ignored, the authority may execute works to stop up the access or deny the facility — and may enter land to do it. In other words: your new junction can be physically closed.

It can also recover the money from anyone holding an estate or interest in land benefiting from the access, and declare the sum a charge on that land. So an unpaid Section 278 does not stay a problem between you and the council — it can attach to the land and land on somebody who was never party to the agreement. Someone made to pay that way can recover a just and equitable contribution from others with an interest, and can still pursue whoever was actually liable under the agreement, but by then everybody is in court.

This is why plot buyers’ solicitors ask about highway agreements, and why the answer matters.

 

Section 278 and Section 38 together

 

Many larger schemes need both. The Section 38 deals with new estate roads intended for adoption. The Section 278 deals with any required works to the existing highway network. If you are working out which highways agreement applies to your scheme, our guide to highways agreements compares the four side by side. They are frequently negotiated in parallel, often with the same team at the same authority, and often secured by the same planning condition or Section 106.

One difference worth holding onto: a Section 38 ends with the council taking on a road it did not have before. A Section 278 ends with the council’s existing road being different. Nothing is being adopted; something is being changed.

If the planning application is refused, there may be no development for the highway works to serve, and many authorities will not progress a Section 278 without planning approval. But a Section 278 is a separate legal agreement, so do not assume an agreement already entered into automatically disappears because the planning position changes. If the highway works themselves are the sticking point, that is usually an argument to have with the highway authority through the planning process. If the refusal is the problem, see our guide to how to appeal against a decision.

 

S278 relevant legislation

 

Section 278 was substituted in its entirety in 1991 — older commentary describing it as a “contributions” power is out of date. Read the “Changes to Legislation” panel at the top of each page before relying on the text.

• Section 278, Highways Act 1980 — agreements as to execution of works
• Section 38, Highways Act 1980 — adoption of new roads by agreement
• Section 184, Highways Act 1980 — vehicle crossings over footways and verges
• Section 23, New Roads and Street Works Act 1991 — substituted the current section 278

Developer contributions & planning agreements

 

Section 278 Agreement Page Updated: 25th August 2026