Section 38 Agreements
A Section 38 agreement is a legal document whose signatories normally include the County Council, the housing developer and a surety provider. The clauses of the agreement outline the standards we require the new road to be built to.
Road adoption process
Section 38 legal agreements are required if a new road is to be adopted by Somerset County Council. The clauses of the agreement outline the standards that we require the new road to be built to. If the roads are constructed to these standards and maintained satisfactorily for a year after they are built, then we will adopt the road.
Other clauses are also usually included in the agreement such as:
- responsibility for the maintenance of the road before adoption
- payment of fees by the developer to the County Council
- any land transfer or wayleave agreements
- what happens if things do not go as planned
Delays to adoption
Delays to the adoption process can be caused by a number of factors:
- the developer has not constructed the road to acceptable County Council standards
- the sewers under the road have not been adopted by the sewerage authority
- the road construction has been completed, but there are outstanding defects which the developer needs to address. These can include defective street lights, overgrown vegetation on verges, potholes
These kinds of delays can prolong the process beyond a year. We have no legal powers to require or oblige the developer to enter into a Section 38 agreement. Sometimes, the developer may fail to keep to the terms of the agreement. When this happens we may call on the surety for the works to be completed. If the extent of the works required exceeds the value of the surety, we may elect not to adopt the road and it will remain ‘private’.
A developer may offer a road for adoption without a Section 38 agreement. Providing the roads are constructed to an adoptable standard, we can adopt the road using a deed of dedication, under the Highways Act 1980.
Ownership of new roads built by developers
We do not adopt all roads. A housing developer may decide to keep a new road private, or a new road may not meet our adoptable standards.
Making your Section 38 submission
Please complete our section 38 application form. This should be accompanied by a Section 38 submission checklist to help ensure a smooth and efficient design check process.
Contact the team
Please email us if you have any enquiries about estate roads, Advance Payment Codes, Section 38 Agreements or road adoption – Estateemail@example.com
Queries and searches
When you enquire about sites, please provide the details of the developer as well as the full address of the site in question and, where applicable, the unique 4-digit number of the Section 38 Legal Agreement.
We get many queries about the Advance Payments Code and Section 38 Legal Agreements as a result of searches carried out by solicitors and home buyers. Typical questions can include
- What is a Section 220 Notice?
- Has it been paid?
- What happens if it hasn’t been paid?
- Can I have a copy?
- Is there a Section 38 Legal Agreement?
- Will there be a Section 38 Legal Agreement?
- Why is there not a Section 38 Legal Agreement?
- What happens if there is no Legal Agreement?
- When will the road be adopted?
- Have certificates been issued?
- Who is responsible for the road before it is adopted?
There is a fee associated with these types of queries. To answer we need the following information
- Full postal address of the property and contact details
- For Advance Payments Code (Section 220 Notices) the number of the APC is helpful as some sites may have multiple APCs
Private and unadopted roads
If a road is private or remains unadopted, we are not responsible for its maintenance or management. Private roads are often maintained by residents or housing companies. Roads which are yet to be adopted remain the responsibility of the developer.
Adoption of older roads
We may consider adopting an older road – but it would need to be in a satisfactory condition. This may mean that the road owner, or residents would either bring the road up to adoptable standard, or jointly contribute to the cost for us to do so.
Email us if you have a query – firstname.lastname@example.org
Advance Payments Code
What is the Advance Payments Code
Under Part XI of the Highways Act 1980, the Advance Payments Code (APC) Section 219-220 requires that ‘anyone proposing to build houses served by a private street must deposit enough money with the Highway Authority to cover the eventual cost of making up the street to adoption standard.’
This aims to relieve home buyers fronting streets of road charge liabilities under the Private Street Works Code if the developer defaults.
In this context a street is considered private unless or until it is adopted as public highway or the subject of a legal agreement which provides for it to become highway maintainable at public expense.
Applications in Somerset
We adopted the Advance Payments Code in 1967, which is in force throughout the county. Once adopted by an Authority the Code applies in all cases, there is no discretion to revoke it, irrespective of the number of dwellings proposed.
Serving an APC Notice
We will serve the appropriate Notice setting out the sum required under Section 220 within six weeks of formal notification of Building Regulation Approval being granted.
Where a charge has been issued it is an offence to do work in contravention of the Code, which is to start building the houses before depositing the funds or securing a bond.
We will use the appropriate legal system to either recover the outstanding monies or prosecute for the offence.
Exemptions (Section 38 Agreements)
There are certain exemptions to the operation of the Advance Payments Code one of which is an Agreement under Section 38 of the Highways Act 219(4)d. We encourage developers to enter into an Agreement under this section as an alternative to the deposit of money required by section 219.
Such an Agreement will be based on approved plans and construction details to our satisfaction and it will be supported by a Bond to cover the due performance of the works.
If building work starts before a Section 38 Agreement has been signed, the developer or builder would be in breach of The Advance Payments Code and could be subject to prosecution.
In some circumstances it will not always be possible to achieve a layout to adoptable standards although APC will apply.
While it is a separate area of legislation, we will endeavour to highlight this through the planning process along the following lines.
‘The applicant should be aware that it is likely that the internal layout of the site will result in the laying out of a private street, and as such under Sections 219 to 225 of the Highways Act 1980, will be subject to The Advance Payments Code (APC). Given the constraints of the site, it will not be possible to construct an estate road to a standard suitable for adoption.
Therefore, in order to qualify for an exemption under the APC, the road should be built and maintained to a level that the Highway Authority considers will be of sufficient integrity to ensure that it does not deteriorate to such a condition as to warrant the use of the powers under the Private Streetworks Code.’
Where a developer wishes for their roads to remain private we are prepared to consider issuing an exemption from The Advance Payments Code under section 219 (4)e.
However, this exemption requires us to ensure that the street is implemented and maintained to a certain standard before a notice of exemption can be issued – this is based on
- the design and layout of the proposed private street, and of any means of restricting access to it, are acceptable from the point of view of public safety,
- the construction standards being in accordance with the current Somerset Specification, and
- after consultation with our Legal Services, that satisfactory and enforceable long term arrangements have been made for securing the future maintenance of the private street.
Early discussion with the engineer is essential in these cases. The developer is required to pay inspection, administration and legal fees as part of the appraisal, at the current rate. This will also cover the technical approval process.
To reduce the on-going Advance Payments Code liability, the requirements are as follows
- All drawings and specifications must be submitted to us for technical approval.
- The construction on site must be in accordance with the approved drawings, inspected and approved by a member of our Development Engineering Supervision Team.
- Provisions for the on-going maintenance of the street must also be considered and details of the legal mechanism or management company will be required along with the planned maintenance regime including an Operations and Maintenance Schedule.
- An APC Appraisal Fee of 8.5% of the estimated cost of the works will be charged for these services.
- An exemption notice under 219 (4)e will be served once the roads have been certified acceptable by us and the appropriate legal mechanism is in place to secure its future maintenance.
- Any secured monies will be returned with appropriate interest to the current landowner, or if bonded this will be cancelled. Part refund of the deposits will not be permitted. Developers should ensure that they are aware of the financial implications of this and suggest taking further legal advice if required.
If you have any observations or questions about the information on this page you can email us – email@example.com
Section 278 Agreements
The Highway Act 1980
Only the Highway Authority is permitted to carry out works to the public highway. Section 278 of the Highways Act 1980 allows works to the public highway to be carried out for the benefit of a third party, on behalf of the Highway Authority.
Section 278 Agreements
A Section 278 Agreement, between the developer and us is required to permit works on the public highway to be carried out. It sets the standards by which the works must be constructed. The Section 278 Agreement also provides for the collection of fees associated with the approval of the works, their inspection, commuted sums for their future maintenance and the provision of a security bond to cover the costs of the highway works if the developer defaults on their delivery. In most situations a Section 278 Agreement will follow the grant of planning permission for development that requires the works to provide adequate access or other associated highway infrastructure to mitigate the impact of the development.
Section 278 Design Checks
To ensure that works are carried out in a manner and to a standard that is acceptable to us, it is necessary that these works undergo a technical checking and approval process. This ensures the works meet our standards and requirements.
We have produced a S106/S278 Procedures document which sets out the process for auditing designs at Detailed Design.
SHIP 01-18 – Section 106/278 Procedures
If you have any observations or questions about the information in this section you can email at S106andS278LegalAgreements@somerset.gov.uk
Where possible you should quote the Agreement number where the query relates to a Legal Agreement or the ‘SA’ number if it relates to a Technical and Road Safety Audit report.
Technical Advice Notes
This section contains additional guidance notes. The Somerset Technical Advice Notes will replace most of the content of our ‘Red Book’ which is still relevant but needs to be updated. When the technical guidance notes have been completed, we will review the ‘Red Book’ and other guidance documents. If there is a discrepancy between the ‘Red Book’ and the new technical advice notes, then the new Somerset Technical Advice Notes take precedence.
The following downloads are available. Please check back regularly for revisions and new additions.
Overview of Estate Road Design
Estate Roads in Somerset – Design Guidance Notes (Red Book)
STAN 01/16 – Visibility requirements on the local highway network
STAN 02-16 – Temporary Traffic Management
STAN 03/19 – Waste Management
STAN 08/18 – Traffic Calming
STAN 11/17 – Specification and Guidelines for the Design, Installation and Maintenance of Traffic Signals in Somerset
If you have any observations or questions about the information in this section, email us – firstname.lastname@example.org
Highway assets and infrastructure in Somerset delivered by developers are continually transferred to Somerset County Council, as the highway authority; through legal agreements securing ‘adoption’ whereby the highway authority then assumes responsibility for the future maintenance and upkeep at the public expense. These assets would typically consist of carriageways, footways, drainage systems, traffic signals, bridges, culverts and lighting systems and by accepting these assets a further financial burden is placed upon the authority for their management and upkeep.
The rationale for seeking commuted sums is to ensure that highway authorities have sufficient financial resources to fund the future maintenance, associated works and, where appropriate, replacement of these additional assets, for which any funding received from Government through the Revenue Support Grant is insufficient.
Regardless of the potential offer of a commuted sum payment, the highway authority will retain discretion as to what it is prepared to adopt, particularly where a proposal may not be acceptable in principle (e.g. on the grounds of highway safety) or where it would be inappropriate for it to do so (e.g. street art, play areas) or where materials are considered to be of an unacceptable or inappropriate specification.
What are commuted sums?
Commuted sums are a payment of a capital sum by an individual, authority or company to the highway authority, local authority or other body, as a contribution towards the future maintenance and upkeep of an asset to be adopted or transferred.
A commuted sum does not need to be a single payment and can, by agreement with the relative authority, be a series of payments and may include issues other than maintenance such as planned and unplanned inspections, repair and relocation of the asset.
In the main, a commuted sum is expected to relate to a payment by a developer to the highway authority as a contribution towards the future capital maintenance of ‘non-standard’ and ‘extra-over’ features of that development.
The payment of a commuted sum discharges the responsibility of a developer of any obligations to the future maintenance of that asset following the issue of the final completion certificate (adoption). The obligation and associated risks then lie with the highway authority to maintain the asset.
What is the legislation under which commuted sums are charged?
Highway Authorities can agree to adopt new roads and secure improvements to existing roads by entering into agreements with developers under Sections 38 and 278 of the Highways Act 1980.
Section 38 Agreements relate to the adoption of private internal estate roads built on the developer’s own land which the developer, upon completion, wishes to be adopted by the highway authority as highway maintainable at the public expense.
Section 278 Agreements provide developers with a mechanism to either fund works, or undertake works themselves, to the existing public highway. The works are often termed ‘off site works’ as they are usually separate from the developer’s site and the works are necessary to provide improved access to, or mitigate the effects of, the new development.
For more information please download our guidance document on commuted sums.
How to contact us
If you have any observations or queries regarding the information on these pages you can send an email to us at;
Road safety audit
Somerset County Council carries out Road Safety Audits on all private development schemes at Stage 1 Feasibility and Stage 2 Detailed Design.
Following the introduction of GG119 Road Safety Audit by Highways England through the Design Manual for Roads and Bridges, Somerset County Council have now produced Road Safety Audit Procedures for Private developments.
SHIP 02-19 – Road Safety Audit Procedures for Private Developments
The objective of the Road Safety Audit process is to provide an effective, independent review of the road safety implications of engineering interventions for all road users.
Somerset County Council attach great importance to the improvement of road safety on the local highway network. The application of DMRB requirements, that are based on road safety considerations, help achieve this objective.
However, even with the careful application of design standards by competent professionals, the design process will not remove all hazards for road users.
The Road Safety Audit process, as set out in the procedures document, helps manage the interaction of different design requirements for highway schemes.
The objective of Road Safety Audit is to identify aspects of engineering interventions that could give rise to road safety problems and to suggest modifications that could improve road safety. It is important to note that Road Safety Audit is not intended to be a technical check of compliance with design requirements.
Although road safety has always been considered during design, Road Safety Audit has existed for a number of years to provide an independent check that the design characteristics do not contribute to collisions and/or incidents on highway schemes.
RSA is undertaken by staff with experience of collision data analysis, road safety engineering experience and a reasonable understanding of highway design principles such as design requirements and best practice. EC Directive 2008/96/EC has mandated the RSA process and associated qualification requirements across the European Community. It is undertaken at key stages in the feasibility design, construction and early operation of a highway scheme.
Although Overseeing Organisations and design teams do not necessarily contain staff with collision data analysis and road safety engineering experience, these organisations play an equally important role alongside RSA teams in achieving the objectives of the process. The RSA process does not change the Overseeing Organisation’s duty to manage safety for all populations and undertake an appropriate level of risk assessment.
All queries can be directed to the Road Safety Audit inbox at;
Somerset Road Safety
Somerset Road Safety’s aim is to reduce collisions and casualties on the roads of Somerset, creating safer communities and improving the quality of life for residents and visitors alike.
Requests for collision data to support a Road Safety Audit can be obtained from the Somerset Road Safety website.