Section 38 guidance notes
|Last updated:||15 December 2020|
For the guidance of private estate developers the council’s requirements in connection with the construction of private estate roads are set out below. Conformity with these requirements will enable the council to adopt them under Section 38 of the Highways Act 1980 as maintainable highways upon satisfactory completion.
These requirements are distinct from those that may be incorporated in the permission to develop, issued under the provision of the Town and Country Planning Act 1990.
Planning consent to the proposed development must first be obtained. Please view our general guidance on layout requirements.
Any highway conditions that may have been incorporated in the conditions of the planning consent must be observed.
All works relating to the construction of any road and highway storm water drainage must be in accordance with the council’s Standard details.
A traffic regulation order (TRO) must be created for any new or upgraded lengths of off carriageway cycleway (segregated or shared use). A deposit of £10,000 must be provided by the developer for the processing of the legal order.
Before starting any work for the purpose of erecting any buildings included in the development, the Developer must pay to the council the estimated cost of constructing the estate roads. Alternatively, the Developer can provide a Bond upon terms approved by the council. If the Developer wishes, they can make an application to the Service Director Planning, Growth & Sustainability (or their representative the 'Proper Officer') requesting the council to enter into an Agreement concerning the construction and adoption of the estate roads as highways maintainable at public expense. This Agreement is often referred to as a 'Section 38 Agreement'.
All highway works must be inspected by the council in accordance with the 'Developer site pre-start meeting tick sheet', available upon request to the council’s Highways Development Management Team’
It is recommended that all roadworks and sewers should be constructed well in advance of any building development.
2. Application for a Section 38 adoption agreement
If an Agreement is made between the council and the developer, the council will adopt the roads when all the terms of this Agreement have been fulfilled and complied with, to the satisfaction of the Service Director Planning, Growth & Sustainability or their representative the 'Proper Officer'.
If the owner wishes to enter into an Agreement they should download and complete the Section 38 application form and submitted via email to firstname.lastname@example.org, or by letter addressed to the Highways Development Management, 6th Floor, Walton Street Offices Aylesbury, Bucks HP20 1UY, making a request that the council, as highways authority, adopt the estate road(s) as highway(s) maintainable at public expense, the developer should note the following requirements:
They are agreeable to conduct and fund any tests required by the 'Proper Officer' being undertaken by an agreed UKAS accredited independent laboratory service. That they will pay the council the design check, administration and inspection costs incurred by the Head of Transportation in connection with the construction of the estate roads. The charges are currently assessed at the rate of 12% or £5,000 whichever is the greater, of the estimated cost of the works and the sum for payment will be included in the Section 38 Agreement which will be prepared by the council. Where highway structures are constructed in connection with estate roads a supplementary supervision charge of 3% of the estimated cost of the structure may be made in addition to the standard charge for carriageways.
The legal costs of the council in connection with the preparation and completion of the Section 38 Agreement will be payable by the Developer. The costs will be advised by legal services once instructions have been issued.
The final surfacing (footways and carriageways) should not be undertaken until all house building works have finished.
The Agreement provides for the 'Proper Officer' to issue a Certificate (the provisional certificate) from the date of which the works within the highway shall be open for ever for public use. The developer may make application for the Bond sum/cash deposit to be reduced when the provisional certificate is issued.
Whether the Section 38 Agreement is to be supported by a Bond and, if so, the names and address of the surety (which must be acceptable to the council) or whether he wishes to deposit a sum of monies in place of the Bond. Any such monies will be duly repaid when the estate roads are adopted in accordance with the terms of the Agreement. This does not include monies paid in connection with the supervision of the estate road, design checks, administration, and the preparation of the agreement.
In addition to the application form, plans are to be submitted for approval. The types and number of plans required are as stated in No. 9(a) together with any necessary copy letter to the developer in connection with approval for lighting and also for surface water drainage.
The Agreement must be between the council and the owner(s) of the land being developed, not any contractor carrying out the actual works. Unless the District Lawyer and Legal Services Manager shall agree, otherwise it will be the owner of the land who will be responsible for all payments under the Agreement.
The Agreement will include a time limit for the completion of the roadworks. The time limit will be agreed by the council and the Developer before the Agreement is made, and the Agreement itself will add to that time a further period of twelve months to cover the period of maintenance of the road at the Developer’s expense, before its adoption.
If the works are not completed within the agreed time limit, an extension of time may be considered upon written application to the District Lawyer and Legal Services Manager. If an extension of time is granted, the Developer may be required to amend the amount of bond or deposited sum.
The Developer will provide Security to the Agreement in the form of a bond or deposit of monies. The council will determine the amount of the security.
4. Submission of plans
One paper and one electronic copy of the plan drawn to 1:2500 scale, or a scale to be agreed, with the area of the site to be developed edged RED and the total areas of the road(s) or street(s) to be adopted coloured PINK are required in order to illustrate the Agreement.
One paper and one electronic copy of the road works are required showing the layout to a scale of not less than 1:250, together with longitudinal road sections and cross-sections, including a typical cross-section showing detailed construction and also giving details of means of disposal of surface water. For a full list of required plans, please see our Technical design information.
The plans should also show the agreed position of the street lights required by the lighting authority. The position of the lights should be shown in Red. Generally, lights are to be sited at the back of the footways. If not Buckinghamshire Council, then a letter signed by the local lighting authority confirming the lighting proposals or that no street lighting is required, shall accompany the plans.
5. Bond or cash deposit
A Bond or cash deposit will be required to the value of the full cost of the works including the cost of any alterations to Statutory Undertakers' plant and mains and the developer's agent should make enquiries of the Undertakers at an early stage of the Agreement.
The Agreement will not be completed until the requirements of Statutory Undertakers have been established and evaluated. The council will require copies of letters from the Undertakers giving estimates of costs.
The current schedule of fees and commuted sums are as follows:
The agreement fee
£5,000 or 12% of the total cost of the value of the engineering (including statutory undertakers, any traffic signal installations & street lighting) whichever is the larger. To be collected on completion of the Agreement or as otherwise may be agreed.
Reduce rate to 9% for element of works costs between £500,000 and £1,000,000.
Reduce rate to 6% for element of works costs between £1,000,000 and £2,000,000.
Reduce rate to 4% for element of works costs in excess of £2,000,000.
All drawing checks & approvals (except structures) relating to the improvement works specified in the agreement.
All administration (but not the council’s legal costs) work associated with the agreement including initial instructions together with the adoption of the works and updating on council databases.
Inspections of the improvement works specified in the agreement, throughout the construction period up to and including adoption.
All drawing checks for compliance to national and local design standards relating to the signal layout specified in the agreement. Comments on the proposed control strategy and whether proposal is likely to achieve desired outcome
All administration work associated with the signal works including commissioning specialist advice together with the adoption of the works
Inspections of the implementation of the signal works specified in the agreement (poles, signal heads, cabling, controller), throughout construction and also during the maintenance period. Attendance of the Factory Acceptance Test (FAT) for the controller and Site Acceptance Test (SAT) for the signals equipment
All drawing checks for compliance to national and local design standards relating to the specific requirements and layout of the development.
Administration and technical support associated with all aspects of the street lighting works, from commencement up to and including the update of the council’s asset management database.
Inspections of the implementation of the street lighting works as specified on the approved drawings, throughout construction period up to and including adoption.
3% the cost of the structural element of the works.
Time charge to be collected by Legal Services.
Additional costs and fees
Please note that any additional costs in relation to but not exclusive of Traffic Regulation Orders for waiting restrictions/movement orders, Temporary Traffic Regulation Orders, Wayleave/Easements, oversail licences, Structure licences, planting licences, land drainage consent will be borne by the developer.
Commuted sums will be required for street lighting, soakaways, structures, trees, signalised junctions, signalised pedestrian crossings and special surface finishes/materials.
7. Street lighting
Where the Lighting Authority requires it, street lighting is to be provided on new roads by the developer. The standard of lighting is to be in accordance with the requirements of the lighting authority and it is the responsibility of the developer to ascertain these requirements.
New estate roads will be generally classified under two main headings namely urban and rural.
Urban areas are generally in the townships of:
- High Wycombe
All other areas will be considered rural.
In urban areas the lighting authority will be the council.
The council has resolved that in respect of developments where it is the lighting authority, it will not adopt lighting systems installed by the developer unless the developer pays to the council the sum of £440.00 in respect of each lighting column erected, being a commuted payment for the future running and maintenance costs of the lighting column.
The lighting system shall be to the current edition of BS5489 and the developer will be responsible for preparing a design in accordance with the Lighting Brief, Specification and Standard Details for approval by the council.
The developer will be required to provide and erect the complete lighting installation to the council’s approval and also arrange for the supply of electricity and connection to the units. When the 'Proper Officer' issues the 'Provisional Certificate', as detailed in Section 10 Maintenance below, the council will be responsible for the cost of the electrical energy and routine maintenance only, until the road is 'adopted'. The installation will remain the property of the developer until the estate road is 'adopted' by the highway authority as a highway maintainable at public expense.
In rural areas the lighting authority will generally be the local Parish Council. A list of contacts for the Parish Councils is obtainable from the council’s website. Some Parish Councils also require the payment of commuted sums in respect of the future energy and maintenance costs of the lighting. As stated, it is the responsibility of the developer to ascertain their requirements prior to commencement of the works.
In cases where the Parish Council does not want to see lighting installed it will be acceptable for a developer not to provide it unless required by council policy, e.g. in the case where traffic calming measures are installed which are required by legislation to be lit. In such instances the council may take responsibility for the future maintenance of the lighting.
The Highways Authority promotes the use of the drainage hierarchy as set out in the Planning Practice Guidance (Paragraph 080) and the use of sustainable drainage systems (SuDS) to manage surface water runoff. The use of SuDS can ease maintenance as water can be conveyed above ground and opportunities for treatment of runoff occur through the SuDS system.
Alternative types of surface water disposal, e.g. soakaways, permeable paving, carry a maintenance liability that increases with time, as permeability reduces due to silting up of the drainage medium. Borehole assisted soakaways, while offering additional discharge to lower ground strata, also carry an ongoing maintenance liability.
These maintenance liabilities place an additional burden on the council and therefore in order to offset these costs the authority will seek a commuted payment. The current 'standard charge' is £5,000 per soakaway and site specific costs for permeable paving TBC although this sum may be increased depending upon particular site constraints and/or features.
Commuted sums will also be sought in the cases of balancing ponds/tanks, catch-pit manholes and petrol interceptors where these are required to be adopted by the council.
The developer should take note that permission will need to be obtained to connect roadside gullies to any surface water system or watercourse.
Any works or connections affecting an ordinary watercourse will require Land Drainage Consent from either the council as the Lead Local Flood Authority or the Buckingham and River Ouzel Internal Drainage Board.
- Connections to the wider highways drainage network will require consent from Highways Development Management for Buckinghamshire Council as the Highway Authority.
- Connections to the sewer network will require consent from the sewerage undertaker.
- Connections to a Main River will require consent from the Environment Agency.
Where your proposed connection does not fall in any of the above categories seek permission from the private landowner.
The developer will be required to show proof of such permission by means of copies of correspondence.
9. Retaining Structures
The council will also seek commuted sums in respect of future maintenance of any bridge, retaining wall or other structure that is to be adopted. Such sums will be calculated on an individual basis.
The council will also seek commuted sums in respect of future maintenance of any tree that is to be planted within highway limits. The appropriate sum is £500 per tree. Any highway trees that the developer wishes to remove must be agreed in advance with Highways DM and a fee of £1500 per tree must be paid.
Proof must be supplied that no trees that are subject to a TPO are to be removed without the TPO being revoked.
No trees or hedging to be removed during the nesting season without proof that mitigation measures have been applied.
The Agreement provides for the 'Proper Officer' to issue a provisional certificate from the date of which the works within the highway shall be open for ever for public use. The developer may make application for the Bond sum/cash deposit to be reduced when the provisional certificate is issued.
The maintenance period is normally at least twelve months and the Bond/cash deposit will remain in force until the works satisfactorily complete the maintenance period and the Final Certificate is issued.
The developer should ensure that inspections are carried out at the relevant times and requests via email followed up with a written letter posted or hand delivered must be made for certificates.
Prior to adoption, the developer will be required to provide precise numbers and details of all adoptable assets shown on as-built drawings.
Prior to adoption, the developer will be required to provide precise numbers and details of all adoptable assets shown on as-built drawings as per section 12b below.
Developer to supply as appropriate the following documents:
- Drainage vesting certificates
- Oversail licences
- Planting licences
- Structures licences
- Traffic Regulation Orders
- Check fees paid
- Commuted sums paid
- Streetlighting electrical safety certificates
- TfB Lighting acceptance certificate
- TfB Traffic Signal acceptance
- H&S File
As built plans to be coloured:
- carriageway blacktop – Burnt Umber (light Brown)
- carriageway block paving – Yellow
- carriageway permeable paving (Infiltration) – Pink
- carriageway permeable paving (Tanked) – White (hatched lines to differentiate between private areas)
- footway blacktop – pale Grey
- footway block paving – Orange
- verge – Green
- drainage (storm) – Blue
- streetlights – Red
- tactile Paving - Purple
- linear meterage of carriageway
- linear meterage of remote footway/carriageway
- square meterage of verge
- number of streetlights
- number of gullies
- number of foul and storm water chambers
- number of trees
- number of lit and unlit bollards
- number of crossing controllers
- number of signal controllers
- number of CCTV cameras
- number of soakaways
As built assets schedules as specified in (In separate document)TBC.
All transportation fees and commuted sums must be paid prior to adoption.
If not covered by the above, Highways Development Management will give any further advice on the submission of plans and the details required.
Walton Street Offices
Legal matters will be dealt with by the District Lawyer and Legal Services Manager
who will contact the solicitor given as in (2) above.