Requirements overview
The council will prepare a Section 38 agreement on receipt the following:
- A written application requesting highway adoption through a Section 38 agreement;
- Confirmation that full planning permission has been obtained for the development from the planning authority, including any reserved matters relating to the road works;
- Evidence submitted of the title to the land to be dedicated as public highway;
- The Advanced Payment Code (APC) bond that ensures, should it become necessary, the council has the funds available to step in to construct or make up a street that forms part of new development.
The council’s Section 38 agreements are prepared in a standard format. However, additional clauses are often required for ‘structures’, ‘commuted sums and where separate licences are required for items such as trees, benches, bins within the proposed highway extents.
To facilitate the adoption process, the preparation of the legal agreement may run in parallel to technical approval. However, the bond must be in place before any work can begin on the agreement.
The council charges fees for preparing the legal agreement. If the developer requires early preparation of an agreement, the council must be indemnified against costs incurred on abortive work.
Design information
The council requires specific plans and design information to enable the processing of a Section 38 agreement. This includes plans indicating the areas and features proposed for adoption. Please note, the council does not accept ownership or maintenance liability of hedges, new or existing, that are outside of or mark the highway boundary.
Highway drainage consents
An application to the council is required for the right to discharge surface water from the highway to an existing sewer, a proposed sewer or a watercourse. Evidence must be provided of water authority approval of drainage proposals.
Approved details of all necessary easements must be provided before an agreement is signed.
If it is proposed that highway water discharges into sewers containing roof and/or yard water, the relevant water company must approve the proposals and they must be included in a Section 104 agreement of the Water Industry Act 1991.
The council will not sign a Section 38 agreement before a ‘letter of intent’ from the water authority has been received to evidence that the drainage proposals are suitable for including in a Section 104 agreement.
Consent must be sought from the relevant water company or other appropriate body to discharge into an existing sewer and the council as the Lead Local Flood Authority to discharge into an Ordinary Watercourse or the Environment Agency in the case of Main Rivers. Evidence will be required of this before entering into a Section 38 agreement. The council must approve proposals for highway drainage, including calculations of surface water run-off. Highway drainage will then be included within the terms of the Section 38 agreement for future adoption.