Introduction
Our lawyers at Planning Clarity Legal are experts on planning law, however it may be less well known that we also regularly advise developer and landowner clients on highways law issues including the negotiation of highways legal agreements. In this blog post, we discuss what are highways legal agreements, when these agreements are required and also provide some practical negotiation tips.
What are highways legal agreements?
Highways legal agreements commonly refer to legal agreements entered into by developers and landowners with the local highways authority pursuant to either sections 38 or 278 of the Highways Act 1980 or a combination of these sections.
These legal agreements provide for highways works to be carried out either on private land to become dedicated and adopted as public highway (pursuant to section 38) or on existing public highway (pursuant to section 278) and the details surrounding these works, including the costs of the works, any cash security deposit or bond to be provided, the description of and drawings for the works, timing for completing the works, and the issuing of certain certificates by the highways authority at different stages of completion of the works.
When are highways legal agreements required?
Given that highways works are a common requirement for new developments, in practice a highways legal agreement is typically a requirement for the granting of planning permission for a development. In these circumstances, there is normally a provision under the section 106 agreement for the development requiring the entering into of the highways legal agreement at a future time (for example, prior to commencement of the highway works or prior to occupation of the development). However, this is not always necessarily the case and highways legal agreements can actually be negotiated and entered into as standalone agreements operating on their own accord.
Practical tips for negotiating highways legal agreements
Our first most important practical tip for developers and landowners would be to start negotiations on the highways legal agreement with the highways authority and its lawyers as early as possible given that in our experience these agreements can in many cases take even longer than section 106 agreements to negotiate.
Again, on timing we would highly recommend that the developer or landowner’s appointed highways consultant seek to agree the scope and cost of the highway works including any drawings for the works with the highways officers at the highways authority as early as possible given that the highways legal agreement cannot be significantly progressed and completed until all these aspects of the works have been settled. In our experience, most delays in progressing highways legal agreements are due to these aspects not having been previously agreed with the highways authority.
Our third practical tip is in relation to the financial security to be provided for the highway works. As mentioned, the highways authority will typically require either a cash security deposit or bond for the estimated cost of the works to be provided. In our experience, some authorities will provide the developer or landowner with a choice as to which of these two options can be used, particularly for smaller scale highway works. A cash deposit will require funds to be deposited upfront with the authority while a bond will need to come from a financial institution such as a bank so you need to prepare for this by either freeing up this cash or by engaging with your bank which may depending on your relationship with them charge you a fee for providing a bond.
How can we help with highways legal agreements?
Our lawyers at Planning Clarity Legal are experts at negotiating highways legal agreements having done so for over 18 years acting for both developers and landowners and also highways authorities. Highway works can be a significant expense for a developer or landowner and if these agreements are negotiated incorrectly then this can prove even more costly so we would always recommend that a specialist planning/highways lawyer be retained to negotiate these types of agreements.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
