The motorway agreements under Section 38 fall below the hierarchical order of development agreements. Section 106 Planning agreements are zealously negotiated to trigger the release of the building permit. Section 278 Work on the existing highway can be difficult in terms of the costs and building permits required and, therefore, be included very early in planning the feasibility of the developers. Section 38 of construction costs is also included in overall development costs. However, the formalization of the dedication and adoption agreement, often a “standard theme,” is generally lagging behind in the development process. It is not uncommon for the first phase of construction to be completed before an agreement is formally concluded in accordance with Section 38. It is generally assumed that after the work under Section 38, the standard inspection and maintenance period, all necessary remediation work has been carried out, that the corresponding practical and final completion certificates have been issued and that the work has been accepted at public expense as road producers, all permanent liability for this work has been extinguished. This presumption is no longer acceptable after the Court of Appeal`s decision in Redrow Homes. Redrow Homes confirms that Section 38 may provide agreements for future costs of maintenance, construction or improvement (whether by pendulum or otherwise) after a highway or highway has been adopted as a highway that is expandable at public expense. Until now, highway authorities have taken different approaches, but in general, when requesting amounts of commuters, they were generally relatively small and specific, usually for non-standard equipment (but for streetlights in the Redrow Homes case).
At a time when municipalities are becoming increasingly late, it is likely that highway authorities will be able to charge amounts for future highway costs that may be available to the public. Developers are advised to redefine Section 38 agreements and review the policy of the jurisdiction over the amounts passed on to commuters at an early start in the development process, so that they can incorporate the corresponding amounts into their business case assessments. The s278 and s38 agreements regulate the aspect of highway infrastructure that is included in a proposed construction. The s278 agreements allow for changes to existing highway networks, allowing developers to do work. The agreement contains details of the building permit, the project, the construction program, the inspection and the associated costs. The Road Agreements team is responsible for private S38, S278 and private road contracts. They carry out technical checks, agreement management, local inspection and takeover of the S38 and S278 plants. In practice, motorway authorities are reluctant to accept changes to their pro forma agreements, and legal negotiations to explicitly limit current liability can be highly controversial, especially when standard agreements leave such liability indefinite (and in fact unlimited). The Court of Appeal may have been a little too optimistic to think that the parties are “reasonably negotiating” as a general rule.