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Creation of New Public Highways (Section 38 Agreement)

A voluntary agreement under Section 38 of the Highways Act 1980 can be used where an applicant proposes to construct a new estate road for residential, industrial or general purpose traffic as the legal means by which the road becomes a public highway.

image of a surveyor using a theodolite

Where, as part of a development, a developer proposes to construct a new estate road for residential, industrial or general purpose traffic there are two main ways in which a new road may be offered to the Highway Authority for adoption to become maintainable at the public expense:

As the Highway Authority, the Council has no power to insist that a road is made up to an adoptable standard or that a road is subsequently offered for adoption. If the road under construction is to be adopted the role of the Council, as Highway Authority, is to ensure that it is built to the appropriate standard and adequately lit and drained.

The Section 38 agreement comprises a framework of clauses, conditions, terms and prescribed timescales within which the developer is expected to operate. Whilst the Highway Authority has no power to insist that a developer enter into a Section 38 Agreement, many consider it the most desirable route to achieve ultimate adoption of their estate road(s).

The adoption process can be lengthy and while the road is unadopted the developer is responsible for maintaining the road until adoption happens. On larger developments the completed road may be used as site access for more phases of the development, therefore adoption under a Section 38 is normally takes place on completion of the whole of the development. Further complications may arise if the site is divided into phases by different developers and on finishing the construction some developers leave the site before the roads are adopted.

A Section 38 agreement is supported by a bond or cash deposit calculated by the Highway Authority and based on the cost of the works proposed. This bond or cash deposit can be called upon if the developer goes into liquidation or otherwise defaults on his responsibilities.

If you are unsure of the status of any highway in Birmingham please contact our Highway Information Team. If the result of your query is that the highway is the subject of a Section 38 Agreement you can get more information by contacting our Private Development Section on 0121 303 7695.

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