Section 38 Agreement: How Road Adoption Works in the UK
A Section 38 agreement is a legal contract between a developer (or landowner) and a local highway authority. Under the Highways Act 1980, it lets the council adopt a newly built road, footway or cycle track, so it becomes a public highway maintained at public expense. It is voluntary, but without one a new street usually stays private, and the cost of upkeep stays with whoever owns it.
This guide explains what the agreement covers, the order in which things happen, what the bond and fees look like, and the mistakes that cause the longest delays. It is written for developers, investors and landowners planning new roads, and for homeowners trying to understand why the road outside a new home is or is not adopted.
TL;DR
A Section 38 agreement lets a council adopt a new road you have built, so it becomes maintainable at public expense under the Highways Act 1980.
The usual order is technical approval, legal agreement, bond, construction with inspections, then certification and adoption.
Expect a bond and fees: one council’s guidance puts the bond at around 100-110% of estimated construction cost and fees at roughly 8.5% to 15%, but every authority sets its own.
Do not start road works before the agreement is sealed and the bond is in place. The council is not obliged to adopt a road built below its standards.
Section 38 (roads) and Section 104 (sewers) are separate processes with separate bonds.
Table of Contents
What a Section 38 agreement actually is
Section 38 of the Highways Act 1980 gives highway authorities the power to adopt by agreement a highway that someone else is liable to maintain. In practice, government advice says these agreements are the most common route to road adoption, mostly on new residential or commercial developments.
Three terms are worth getting straight:
Highway: a way over which the public has a right of passage.
Adopted: the highway authority has taken over the duty to maintain it, so the cost moves from a private owner to the public purse.
Unadopted or private: the road may be used by people, but residents or landowners are responsible for repair, lighting and drainage. The House of Commons briefing on private and unadopted roads covers this in detail.
Many homeowners assume the road outside their house is public. It is not always so, and that is the main reason buyers of new-build homes ask about Section 38.
Who needs one, and who does not
You will normally need a Section 38 agreement if you are building new roads, footways or cycle paths as part of a development and want the council to adopt them. Councils such as Leeds state this plainly: if the new roads and paths are to be offered for adoption, the agreement is required.
You may not need one if:
The development is a single dwelling or small scheme served by an existing adopted road.
You intend to keep the road private and arrange maintenance through a management company or residents’ arrangement.
The works are on an existing public highway, such as a new dropped kerb or junction. Those fall under a different power, which we cover in our guide to Section 278 agreements.
The decision to seek adoption is the developer’s. Adoption gives buyers confidence and removes a long-term liability, but it also brings fees, a bond and council inspection of the work.
Section 38 vs Section 278 vs Section 104
These three get confused constantly.
Agreement | What it covers | Who adopts |
Section 38 | New roads, footways and cycle tracks built by the developer | Local highway authority |
Section 278 | Works to the existing public highway needed because of your development | Already public; works are done to council standards |
Section 104 (Water Industry Act 1991) | Foul and surface water sewers | Water company |
The key point from Cheshire East Council’s adoption guidance is that road and sewer adoption are separate legal processes. Each has its own bond and requirements, and money secured for one cannot be used for the other. If your site also involves building near existing drains, read our checklist on build over sewer permission early, because drainage design often drives the road layout.
The process, step by step
Exact procedures differ between councils, but the sequence is consistent. This outline follows the pattern in North Yorkshire Council’s December 2025 developer guidance, and other authorities publish similar guides.
Talk to the highway authority early. Ask for its design standards before you finalise layouts. Government advice on adoption stresses that authorities are unlikely to enter an agreement without formal technical approval.
Submit technical drawings. Road geometry, construction details, drainage, lighting and street furniture are checked against local standards. This stage is where most delay arises, because drawings that miss local requirements go through repeated revisions.
Prove title. You need freehold title to all land that will become highway. If you do not own it, the actual landowner must be a party to the agreement. Have title searches ready before legal drafting starts.
Draft and seal the legal agreement. North Yorkshire’s guidance indicates this stage alone can take six to eight weeks, depending on complexity and how quickly solicitors respond.
Secure the bond. The council needs financial protection in case you default (see below).
Build under inspection. The authority inspects at set stages, usually before layers are covered. Keep records and give notice when inspections are due.
Reach completion and adoption. After a preliminary certificate and a maintenance period, during which you fix defects, the council issues a final certificate and the road becomes maintainable at public expense.
The bond: how it works and why it surprises people
The bond (or other surety) protects the council if you do not finish the road or it fails during the maintenance period. In North Yorkshire’s guidance it is often valued at 100-110% of estimated construction cost. Other councils set their own percentages, so treat that as one example, not a national rule.
Two details catch developers out:
The council’s estimate, not your contract price. Government advice notes that bond values are based on the authority’s estimate of the cost to complete the works, which may be higher than what you are actually paying your contractor.
Commuted sums. Complex drainage or specialist surfaces can attract commuted sums for long-term maintenance. These are usually tied to the bond until final adoption.
Build the bond and any commuted sums into your cash-flow forecast from the start. If you are a developer agreeing stage payments with a contractor, our guide to builder payment schedules shows how to link payments to verified milestones.
Fees and timescales
Councils charge for technical approval, inspection and legal administration. Guidance from North Yorkshire Council points to figures often in the range of 8.5% to 15% of construction costs, though the percentage depends on the authority and the scheme. You may also be asked to cover the council’s legal costs whether or not the agreement completes.
For timing, plan on:
Technical approval: highly variable, and the most common source of delay.
Legal agreement: six to eight weeks in the North Yorkshire example, once approvals and title are settled.
Construction: depends on the scheme, with inspection hold points built in.
Maintenance period before final adoption: set by the agreement.
Because completion of the agreement can depend on third parties, easements, covenants and drainage consents, government advice says it remains the developer’s responsibility to secure these rights and pay any fees they involve.
Why you should not start road works first
It is tempting to start groundworks to keep the programme moving while paperwork is finalised. Construction guidance and local authorities warn against it. The council has no obligation to adopt a road built to an inferior standard, and you could be left with a road that is unadopted, with the long-term maintenance cost and liability.
The safer sequence is simple: technical approval, sealed agreement, bond in place, then start. Pre-start planning matters in other ways too. Planning conditions often need to be cleared before groundworks begin, and our guide to discharging planning conditions explains how to apply and what to expect.
Do not confuse this with project specifications. Documents such as a Section 01 specification are a general construction-documentation concept and have nothing to do with the Highways Act, though your own contract documents should clearly reference the council’s adoption standards.
Checking whether a road is already adopted
If you are a buyer or homeowner rather than a developer, you can find out the status of a road in a few ways:
Check the council’s Register of Highways Maintainable at Public Expense. Many councils offer it through an interactive map, or you can contact the land search team.
Ask your conveyancer to confirm adoption status in the searches.
Be aware that a very recent adoption may take up to a month to appear on official registers. If no record exists at all, the road is likely unadopted or private.
In Essex, for example, the county’s highways service runs a development management portal holding completed Section 38 and Section 278 agreements, along with confirmation of highway adoption. Other counties and London boroughs have their own equivalents.
If your new home sits on a street with an agreement not yet completed, ask the developer for the agreement reference, the bond status and the expected adoption date. Our new-build snagging checklist helps with defects inside the property, but road and drainage adoption should be raised separately with the seller.
Common mistakes that cost months
Designing before consulting the authority. Local standards differ on road widths, surfacing, lighting and drainage details.
Ignoring title. Unregistered land or a landowner who is not a party stalls the legal stage.
Assuming one bond covers roads and sewers. It does not.
Underestimating the bond. It follows the council’s cost estimate and may include commuted sums.
Building first and approving later. The council can refuse to adopt work below standard.
Neglecting neighbours. Where works touch boundaries, a party wall agreement may be needed alongside highway approvals.
Our view on Section 38 from the build side
We approach adoption as a programme question, not a legal footnote. On a scheme with new roads, the agreement, bond and inspection regime shape when ground can be broken, how stages are paid for and who is accountable if something fails inspection. Clients who settle these points before the first excavator arrives have fewer surprises.
Our own work is built around transparency and fast, detailed quoting, and that matters most when infrastructure is involved. A road is not finished when the tarmac is down; it is finished when the council signs it off. We would rather a client sees the technical approval, the bond requirement and the inspection schedule laid out in a quote than discover them in month four. Where a scheme needs both highway and building work, having one project manager running both reduces the gaps between consultants, contractors and the council.
One practical tip: ask your contractor to show you how they record inspections. Photographs, dated test results and signed hold-point notices are your evidence when the council asks whether the road was built as approved.
— Florin
How EvoStruct can help
If you are planning roads, car parks or other infrastructure alongside a residential or commercial scheme, our infrastructure team can review your drawings and give you a detailed quote within 24 hours. We also deliver commercial building and refurbishment, with project management from planning through to completion across Greater London and Yorkshire. You can see live projects through virtual tours before you decide.
For section-by-section requirements, the highway authority for your site remains the final word: we work to its standards, not around them.
FAQ
Is a Section 38 agreement compulsory?
No. It is a voluntary route to adoption. A developer can instead keep roads private and arrange maintenance through a management company, but then the road will not be maintained at public expense.
How do I find out if a Section 38 agreement exists for a road?
Start with the local authority’s highway adoption register or its land search team, and check any development portal the council runs. Your conveyancer can also ask in the searches. If nothing is recorded, the road is likely to be unadopted or private, though very recent adoptions can take up to a month to appear.
How long does a Section 38 agreement take?
It depends on the council and the scheme. North Yorkshire’s guidance suggests the legal drafting stage alone can take six to eight weeks. Technical approval before it, and construction and the maintenance period after it, usually take longer.
What is the difference between Section 38 and Section 278?
Section 38 covers new roads that a developer builds and offers for adoption. Section 278 covers changes to the existing public highway needed because of a development, such as a new junction or access.
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