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Section 38 agreements

What is a Section 38 agreement?

A Section 38 agreement (or S38) is the section of the Highways Act 1980 that is used when a developer proposes to construct a new road for residential, industrial or general purpose traffic that may be offered to the Local Highway Authority (St Helens Borough Council) for adoption as a highway maintained at the public expense. 

"An agreement under this section may contain such provisions as to the dedication as a highway of any road or way to which the agreement relates, the bearing of the expenses of the construction, maintenance or improvement of any highway, road, bridge or viaduct to which the agreement relates and other relevant matters as the authority making the agreement think fit."  

When an S38 agreement is in place, the developer must operate within a set of terms, conditions, and timescales. It is supported by a cash deposit or institution-backed surety bond that is calculated by the council that may be called upon to complete the works if the developer goes into liquidation or otherwise defaults on their responsibilities as set out within the agreement.

Prior to the forming of an S38, the developer will have to complete a series of technical checks to ensure that the scheme is suitable for adoption and that the design complies with the council's adoption criteria. 

S38 agreements are often entered into alongside Section 278 agreements (or S278s), which allow developers to carry out works to modify or reconstruct the public highway. This may be necessary, for example, to provide access to a new site or to improve access to an existing site following planning approval. Further information on S278 agreements