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Working on existing highways - Part 6
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Part 6: Working on existing highways - Section 278and Section 184 procedures
6.1 This part details our requirements for the construction of works on the existing
public highway under Section 278 of the Highways Act . It covers what we will require
from you in terms of:
(Note:
Please see our 'Highways Status Search'
page for details of which existing roads are adopted)
Or, you may be able to carry out works in the highway under S184 of the Highways
Act, which deals with constructing new vehicle crossings over footways and verges. We have recently
published separate guidance see guidance note S184 on carrying out works under S184.
If you think that this might be more appropriate for your works, please contact us prior to proceeding
with preparing your proposals. Our Section 278 procedures are shown in Figure WEH1.
Figure WEH1 Section 278 procedures
 * Note: If you want us to carry out design and approval work before you have completed
the Section 278 legal agreement with us, we will normally ask you for an ‘abortive costs’ letter. In
this letter, you must agree to pay our costs if you do not proceed with your development proposals for
any reason. We will not normally carry out design checking and approval unless we have received this
letter or the Section 278 agreement is complete.
6.2 You should consult both us and the planning authority at an early stage of preparing
your development proposals, especially if the proposed highway works are extensive and have potentially
significant environmental impacts, for example removal of trees and hedges. This will give an opportunity
to resolve any potential problems relating to the works before you submit any planning application.
Notes
6.3 Where development requires works to be carried out on the existing highway,
you will need to complete an agreement with us under Section 278 of the Act.
6.4 Section 278(1) of the Act (as amended by the New Roads and Street Works Act
1991) says: “A highway authority may, if they are satisfied it will be of benefit to
the public, enter into an agreement with any person -
(a) for the execution by the authority of any
works which the authority are or may be authorised to execute, or
(b) for the execution by the authority of such
works incorporating particular modifications, additions or features, or at a particular time or in a
particular manner,
on terms that that person pays the whole or such part of the cost
of the works as may be specified or determined in accordance with the agreement.”
6.5 In Leicestershire, we normally use this section of the Act to allow you, the
developer, to employ a contractor and for that contractor to work on the existing public highway in
the same way as if we, the highway authority, were carrying out the works instead. You are normally
responsible for all aspects of the works on the public highway, from their design, through supervising
construction and ensuring that the works are fully and finally completed to our satisfaction.
6.6 Section 278(3) of the Act, says: “The agreement may also provide
for the making to the highway authority of payments in respect of the maintenance of the works to which
the agreement relates and may contain such incidental and consequential provisions as appear to the
highway authority to be necessary or expedient for the purposes of the works.”
6.7 This section of the Act entitles us to seek expenses for future maintenance
and we intend to do this through commuted sums. This will allow us greater flexibility
to adopt non-standard layouts and materials without placing undue burdens on our
maintenance budget or Council Tax payers. However, even if you offer a commuted sum payment, we may
still not approve your proposals and allow you to work on the highway if we consider them to be inappropriate
or unacceptable on highway-safety grounds. (Please refer to paragraph 6.65 onwards
for further details on commuted sums.)
6.8 Section 278 agreements are often used together with an agreement under Section
106 of the Town and Country Planning Act 1990. Such agreements, between a planning authority, us (where
highway works are covered) and a landowner and developer, are used to regulate developments where using
planning conditions would not be appropriate. Granting planning consent depends on the landowner or
developer entering into a Section 106 agreement. Section 106 agreements may cover a number of matters
such as securing off-site highway works, landscaping, phasing the development, paying sums of money
and so on.
6.9 Both Section 278 and Section 106 agreements operate in the same way in relation
to highway works. They follow the procedures involved in the approximate order they occur from initial
consultations through to final completion of the highway works.
6.10 Before you can enter into a Section 278 agreement you must normally obtain
full planning permission for the development from the planning authority. This must include approval
of any reserved matters relating to the highway works.
Note:If you want to start the Section 278 procedures before you receive planning
consent, we will only consider this if you agree to refund all of our costs if planning consent is not
given or the development does not proceed for any other reason.
6.11 Our Section 278 agreements are in a standard format. However, at times it will
be necessary to make amendments, for example to allow for specific structures and commuted
sums.
6.12 You will need to supply certain information before our solicitors can begin
preparing the agreement. The information required is listed on guide AG1. This will
include, where appropriate, a letter confirming that you will be responsible for all our costs if planning
permission is not given or the development does not proceed for any other reason.
6.13 Once we have received the correct information, we will instruct our solicitors
to prepare the agreement. You will be charged a fee for us preparing the agreement. Please see Section
WEH7.
6.14 Before we sign the Section 278 agreement, you must provide us with written
proof that you have informed the Health and Safety Executive in writing that you
are appointed client for the works for the purposes of the ‘Construction (Design and Management)
Regulations’ (CDM Regulations). We will not sign the agreement until you have
provided this proof.
(Note: As defined in the CDM Regulations, client
means any person for whom a project is carried out, whether it is carried out by another person or is
carried out in-house.” The regulations go on to state: Where the person appointed
[as client for the works] makes a declaration [to the HSE that he will act as client for the works for
the purposes of these regulations], from the date of the receipt of the declaration by the [HSE]), such
requirements and prohibitions as are imposed by these Regulations upon a client shall apply to the person
so appointed (as long as he remains as such) as if he were the only client in respect of that project.”
In other words, as client for the works, you will be responsible for meeting the Regulations and making
sure that the works are designed and constructed in line with the Regulation. This is not our responsibility.
6.15 We must be protected against the risk of unforeseen expenditure if you leave
the highway works unfinished for any reason. So, we will calculate the cost of the highway works, including
any highway structures, highway drainage, works to service providers equipment (for example, gas, water,
cable TV) and commuted sums (where applicable) and you must provide us with an appropriate
surety equal to the cost that we calculate. This may be in the form of:
6.16 For information
on the other fees we charge for highway works covered by Section 278 agreements and on commuted sums,
please see Section WEH7.
6.17 The works should normally be designed in line with the standards set out in
this document, including Part 3, Part 4 and our
Specification. Our standard conditions applying to highway works for new development
provides additional advice, for example on utility equipment (such as gas, water, electricity, and so
on). If you have not carried out development in Leicestershire before, you should also first read Part
1 and Part 2.
6.18 It is in everyone’s interest that the highway works are designed by reputable
chartered consulting engineers with experience in designing highway works. So, we must approve the consulting
engineers who you choose to design the highway works. At the appropriate time, you must give us details
of the consultants you want to use. You can find a list of the information required on guide
AP1.
6.19 We will require safety audits for all highway works covered by Section 278
agreements. They must be carried out by an accredited safety audit team that is independent from the
designers. You will be responsible for commissioning and paying for all safety audits. Please see appendix
D for further details on safety audits.
6.20 You must comply with all aspects of the Construction (Design
and Management) Regulations 1994 and indemnify us (protect us from legal responsibility) against
all claims, liabilities and actions if you fail to do so.
6.21 Feasibility stage: You should agree the need for any off-site highway works
and their general nature with us before you submit a planning application. We will need to be satisfied
that any proposed highway works:
before
we recommend to the planning authority that the development is acceptable.
6.22 You will be required to supply key information at the feasibility stage so
we can be satisfied that the proposed highway works are possible. You can find a list of the information
required in guide FS1.
6.23 The preliminary design stage: When we have agreed the general scheme layout
at the feasibility stage, we will need your approved consultants to submit a preliminary design. This
should minimise the need for a lot of design changes at the later, detailed design stage.
You can find a list of the required documentation we need on guide PD1. Once we
have received confirmation that you will be responsible for all the costs if planning permission is
not given or your development does not proceed for any other reason, we will check your design.
6.24 At this stage, you or your consultants should talk to other parties who could
have an influence on the design of the works, for example utility providers (for
example gas, water, cable TV) or the Environment Agency. Working with us, you or
your consultants should also carry out consultations with the parish council, the local county councillor
and nearby residents. You should then analyse any comments you receive and forward them to us (together
with your response) for a decision.
6.25 In the case of traffic-calming schemes, we will carry out consultations with
interested parties in accordance with paragraph 6.31. After we have received and
analysed comments, we will forward our decision to you. You must incorporate any changes to the design
we ask for as a result of the consultations.
6.26 The detailed design stage: When we have approved the preliminary
design, we will need your consultants to submit the detailed design. You can find a full list of the
requirements on guide DD1.
6.27 At this stage we will:
6.28 When we have accepted
the detailed design, we will issue conditional approval.
6.29 The agreement will state that we must approve the detailed design before any
construction work starts.
6.30 Where a development requires changes to an existing traffic regulation order
(TRO) or a new order is required, you will normally be required to pay all costs associated with this,
including all consultation and legal costs. TROs are subject to statutory procedures and
consultations. This can be a very lengthy process and a successful outcome is not guaranteed.
You should get advice on the likely timescale and take this into account when you programme your proposals.
6.31 Where the works involve traffic calming, we will consult with interested parties,
such as the parish or town council and the local county councillor and residents, about the traffic-calming
schemes in line with our normal County Council practice. This may include a public exhibition and other
consultations beyond minimum statutory requirements. We also carry out consultations on other traffic
management schemes, in line with our normal policies and procedures (which we will advise you of during
the design process).
6.32 After we have received and analysed comments, we will forward our decision
to you. You must incorporate any changes to the design we ask for as a result of the consultations.
6.33 You must pay the costs of this consultation whether or not the outcome is successful.
You should remember that the consultation procedure can be lengthy which will have implications on the
programme of works.
6.34 Where the highway works involve structures please refer to Part
4, Section MC15 for design requirements.
6.35 In the county, we will normally design traffic-signal equipment based on detailed
road-layout drawings you have supplied. In the City, we may allow your consultants to design the equipment.
6.36 We will normally supply and install all permanent traffic-control equipment
which forms part of the highway works. You must pay the reasonable cost to us for supplying and installing
the equipment (plus 10% for our design costs).
6.37 You must normally pay us a commuted sum towards the future
maintenance of the traffic-signal equipment. Please also see Part 4, Section MC18
for further details on our commuted sums policy.
6.38 You must allow us access at all reasonable times to any part of the site on
which cables, pipes, ducts or other apparatus associated with the traffic-signal equipment is to be
installed or is located. This will enable us to carry out any works we need to do to install and maintain
the cables, pipes ducts or other apparatus.
6.39 We will only issue a technical approval when:
6.40 Where works are being carried out under a Section 278 agreement, you must not
begin construction unless and until:
6.41
Notification of start: You must normally give us at least five weeks’ notice in writing of your intention
to begin construction work or begin it again.
6.42 Approving your contractor: Your highway works must be constructed by a contractor
(including any sub-contractor) who has relevant experience and capabilities. You must not start construction
of the highway works until we have approved your contractor. So, you must supply information about the
contractor you want to use. You can find a list of the information we need on guide AP3.
6.43 Where you are unable to supply us with satisfactory details, or where we have
previously experienced problems with a contractor (for example with quality of workmanship) we will
not approve that contractor.
6.44 The contractor’s insurance: You must indemnify us (protect us from legal responsibility)
against any claims by third parties arising from the highway works. Before we will approve your contractor
they must provide us with written evidence that they have, as a minimum, £5 million public liability
insurance with no limit on the number of claims.
6.45 Pre-start meeting: You must arrange a ‘pre-start’ meeting with the appropriate
area office. You can find a list of people who should be present at the meeting,
and a typical agenda, in PS1.
6.46 You must comply with all aspects of the Construction (Design
and Management) Regulations 1994 and indemnify us (protect us from legal responsibility) against
all claims, liabilities and actions if you fail to do so. You are also required to submit full details
of any traffic management proposals for the construction of the highway works for approval by the appropriate
area office inspector.
6.47 You are responsible for the day-to-day supervision of the highway works construction.
We will only inspect the works to check that they are being constructed in accordance with the approved
drawings and our requirements.
6.48 It is in everyone’s interests that the works are supervised by a competent
engineer who is experienced in site supervision of highway works. So we must approve the supervising
engineer. The level of supervision you must provide will depend on the nature and scale of the works.
For larger schemes, you must provide supervision at all times. We will discuss and agree the level of
supervision you must provide at the pre-start meeting.
6.49 You must give our representatives access to the works in progress at all times.
These visits do not free you from your responsibility for supervising the work and making sure that
it is carried out in a proper and safe manner, and in line with the specification. The agreement will
state that you must carry out the highway works to our satisfaction and you must comply with any reasonable
requests made by our representatives.
6.50 Once you have begun work on site it is your responsibility to complete the
highway works to our satisfaction and within a ‘reasonable’ period to minimise any potential disruption
to highway users.
6.51 We impose a time limit on completing highway works. Normally, the works must
be completed, that is we have issued a provisional certificate, not later that 12
months after their construction started.
6.52 Where you do not complete the highway works within the specified time limit
and we agree an extension of time, we will charge you extra fees towards our additional administrative
and inspection costs. Please see paragraph 6.63 onwards for further details. We
may call on the bond or use the surety monies that you lodged with us to complete the works.
6.53 We will issue a provisional certificate of completion once:
6.54 When
we issue a provisional certificate the amount of bond can be reduced, usually to 10% of the original
amount. The exception to this is where you are paying us a commuted sum in which
case the bond cannot be reduced to a value less than the ‘provisional’ commuted sums that we have calculated.
6.55 You will then be responsible for maintaining the highway works for a minimum
period, usually twelve months. This allows any defects in the works to become apparent after they are
brought into use.
6.56 We will issue a final certificate of completion when the
following actions have taken place.
6.57 After all
of the above has been done to our satisfaction, we will:
6.58 We make a charge for the work involved in:
6.59 The charge for administration,
design checking and site inspection is normally a fixed percentage. It is based on the estimated cost
of the total highway works, as agreed with us, and excludes any associated structures (see below) and
SUDS and ‘non-standard’ drainage systems, but includes any alterations
to service providers’ equipment (water, gas, cable TV and so on). The fee is normally calculated as:
with a minimum charge of
£1000 for each agreement.
6.60 We will make additional charges for design checking and site inspection of
highway structures based on ‘actual’ costs. (Please see Part 4, Section MC15 for
further details on structures.) We will also charge additional fees, based on ‘actual’ costs, for SUDS
and ‘non-standard’ drainage systems. (Please see Part 4, Section MC8
for further details on drainage.)
6.61 We will also charge a separate fee of 10% of any commuted sums
towards the costs of our additional administration and inspection work.
6.62 There is also an additional fixed fee for each agreement plus disbursements
(money we pay on your behalf) to cover legal costs. This fee is fixed by the Legal Department and we
review it every year.
6.63 If the highway works are still not complete after the time
limit specified in the agreement, we will offer you an extension of up to twelve-months; however we
will reassess the bond and charge you a further 3% inspection fee based on our assessment of the cost
of the outstanding works, with a minimum charge of £1000.
6.64 If a period of two years or more has elapsed since we issued the provisional
certificate and the final certificate has not yet been issued, we will charge you a further fixed fee
of £500 for additional administration and inspection work.
6.65 For some time we have normally required commuted sums to
cover maintenance of such items as highway structures, noise fencing, traffic signals and ‘heritage’
street lighting where they are to be adopted as part of a publicly maintained highway,
We have now broadened this requirement to give us greater flexibility to adopt ‘innovative’ layouts
and ‘non-usual’ materials without placing undue burdens either on our budgets or on Council Tax payers.
6.66 So, where in principle we are prepared to adopt them, you will normally also
have to pay commuted sums on:
Note:
Where you are proposing SUDS, you must hold discussions with all relevant parties
at an early stage (and certainly before you submit your planning application) to agree ownership and
responsibility for the facility.
This is not an exhaustive list. There are other occasions detailed throughout this
document where we require the payment of commuted sums, for example vertical traffic calming.
6.67 Part 4, Section MC18 gives more details on commuted sums
and how we calculate them.
6.68 Under the Land Compensation Act 1973 people can claim compensation if the value
of their property is depreciated by noise and other specified physical factors arising from the use
of a new or altered highway. The Noise Insulation Regulations 1975 require us to offer noise insulation
or grants to occupiers of dwellings subjected to noise at or above the specified level due to the use
of a new or altered highway. The agreement contains a clause requiring you to indemnify us (protect
us from legal responsibility) against the full costs of any payments we make under these regulations.
We will notify you about any claim we receive and also about any offers of noise insulation we are making,
if any.
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