A Section 38 agreement (or s38) is a section of the Highways Act 1980 that can be used when a developer proposes to construct a new estate road for residential, industrial, or general-purpose traffic that may be offered to the Highway Authority for adoption as a public highway.

A developer may complete the construction of a road and then offer it to the Highway Authority under Section 37 of the Highways Act 1980. A s38 is more desirable because if an s38 agreement is made before construction starts, the council can ensure that it is built to the appropriate standard and is lit and drained.

The Highway Authority (council) has no power to insist that a developer enters an S38 agreement. However, many developers also see it as the better option, as the adoption process can be lengthy, and if it takes place after a road is completed, the developer will be responsible for all maintenance until adoption takes place.

Once a Section 38 agreement is made, the developer will have to operate within a set of conditions, terms, and timescales. It is supported by a bond or cash deposit calculated by the Highway Authority and based on the works proposed. This bond or cash deposit can be called upon if the developer goes into liquidation or otherwise defaults on their responsibilities.

For all new road adoption enquiries, please contact us by email: tdm@befirst.london.