Signing a Section 38 agreement feels like the end of the highway process. It is closer to the beginning. What follows is a sequence running for years after the roads are built, and it involves money held, standards checked and a certificate that arrives considerably later than most people expect. Sites where nobody planned for that stage tend to be the ones where adoption stalls.

What the agreement actually commits you to

A Section 38 agreement is a commitment to construct roads to an adoptable standard and to maintain them until the authority takes them over. That second part is the one people underestimate. Between completion and adoption there is a period, commonly twelve months and sometimes longer, during which the developer remains responsible for maintenance. So the agreement is not a handover. It is a promise to build, a period of continued responsibility, and then a handover.

The bond

Before work starts, the authority will require security, usually a bond, covering the cost of completing the works if the developer does not. The figure is set by the authority based on the value of the works, and it is generally released in stages rather than all at once. Part on satisfactory completion, the remainder at final adoption. Bonds carry a cost for the duration they are held, which is one reason a stalled adoption is expensive rather than merely irritating. A bond sitting in place for five years because a final certificate has not been issued is money doing nothing.

Inspection during construction

The authority inspects as the works proceed rather than only at the end. That means notice at particular stages, the ability to inspect before things are covered up, and testing of materials and construction. Sub-base, drainage, kerbing and surfacing are all checked at the point they can be seen. Work covered without inspection is the most common source of dispute, because the authority is entitled to require it to be opened up. Building to the specification is necessary and demonstrating it was built that way is the other half.

The maintenance period

Once the works are substantially complete and the authority is satisfied, the maintenance period begins. During it, the developer remains responsible for defects. Surface failures, settlement over service trenches, drainage that does not perform, ironwork that has dropped. Anything appearing during the period is the developer’s to put right. The period exists precisely because some defects only show after a winter and some traffic. A road that looks perfect in July may reveal problems by March.

Commuted sums

Authorities frequently require a payment covering the future maintenance cost of anything they would not ordinarily have to maintain. Typical items include street trees, non-standard surfacing materials, structures, sustainable drainage features, and lighting to a specification above the standard. The figures can be substantial, and they are frequently a surprise because they are not always discussed at the point the design is agreed. A design feature chosen for appearance can carry a commuted sum attached to it for decades of maintenance. Raising this during design, rather than at the point of adoption, allows the cost to be weighed against the benefit. This is one of several things worth settling during pre-application engagement.

The final certificate

At the end of the maintenance period, assuming defects have been resolved, the authority issues a final certificate and the highway becomes maintainable at public expense. That is the point at which the remaining bond is released and the developer’s obligation ends. Getting there requires a final inspection, resolution of anything outstanding, and the paperwork being complete. Missing as-built drawings, absent test records or unresolved service adoptions all hold it up.

Where adoption stalls

A few recurring reasons.

  • Residual defects nobody has taken ownership of, particularly where the original contractor has left and the developer has moved on.
  • Statutory undertakers, since the highway cannot be adopted until services within it are themselves adopted. Water, gas, electricity and telecoms each have their own process and their own timescale.
  • Drainage, especially where sustainable drainage features are involved and responsibility for them sits between the highway authority, the water company and a management company.
  • Records. As-built information and test certificates that were never assembled at the time and cannot easily be reconstructed afterwards.
  • Phasing, where a road serves later phases still under construction and the authority reasonably declines to adopt something that will carry construction traffic for another two years.

Why it matters to residents

Unadopted roads have consequences beyond the developer. Residents may find the street is not gritted, not lit to the standard they expect, and not repaired by the council. Management charges may apply. And it can affect conveyancing, since buyers’ solicitors raise unadopted roads as a matter for enquiry. That generates correspondence, and it usually lands with the developer.

Planning for it from the start

The sites that adopt cleanly tend to have done a few things. Design agreed with adoption in mind rather than adjusted afterwards. Inspection regime understood and notice given properly. Records kept as the work proceeds. Commuted sums identified early. And a phasing plan that does not ask the authority to adopt a construction route. The design itself follows the applicable standard, which is a question in its own right covered in the note on Manual for Streets and the DMRB, and it will have been through a road safety audit before construction. If you have a scheme approaching a Section 38, or one where adoption has stalled, you can reach the team through the London office, the Bristol office, the Cambridge office, the Norwich office or the Welwyn Garden City office.