Section 38 (in-depth guidance notes)

For the guidance of private estate developers our requirements in connection with the construction of private estate roads are set out below. Conformity with these requirements will enable the council to adopt them under Section 38 of the Highways Act 1980 as maintainable Highways upon satisfactory completion. These requirements are distinct from those that may be incorporated in the permission to develop, issued under the provision of the Town and Country Planning Act 1990.

If the Developer wishes, they can make an application to the Service Director, Planning, Growth & Sustainability (or their representative the 'Proper Officer') requesting the council to enter into an Agreement concerning the construction and adoption of the estate roads as Highways maintainable at public expense. This Agreement is often referred to as a 'Section 38 Agreement'.

Planning consent to the proposed development must first be obtained. View our general guidance on layout requirements.

Any highway conditions that may have been incorporated in the conditions of the planning consent must be observed.

All works relating to the construction of any road and highway storm water drainage must be in accordance with the council’s Standard details & Technical Design Information .

A traffic regulation order (TRO) must be created for any new or upgraded lengths of off carriageway cycleway (segregated or shared use). A deposit of £10,000 must be provided by the developer for the processing of the legal order.

Before starting any work for the purpose of erecting any buildings included in the development, the Developer must pay to the council a cash sum equivalent to the estimated cost of constructing the estate roads. Alternatively, the Developer can provide a Bond upon terms approved by the council. See section 5 below.

All highway works must be inspected by the council in accordance with the 'Developer site pre-start meeting tick sheet', available upon request to the council’s Highways Development Management Team.

It is recommended that all roadworks and sewers should be constructed well in advance of any building development.

If an Agreement is made between the council and the developer, the council will adopt the roads when all the terms of this Agreement have been fulfilled and complied with, to the satisfaction of the Service Director Planning, Growth & Sustainability or their representative the 'Proper Officer'.

If the owner wishes to enter into an Agreement they should download and fully complete the Section 38 application form then submit it via email to [email protected], or by letter addressed to;

Highways Development Management
6th Floor
Walton Street Offices
Aylesbury
Buckinghamshire
HP20 1UY

The developer should note the following requirements:

• They are agreeable to conduct and fund any tests required by the 'Proper Officer' being undertaken by an agreed UKAS accredited independent laboratory service.
• That they will pay the council the design check, administration and inspection costs incurred by the Service Director Planning, Growth & Sustainability, or their representative the 'Proper Officer' in connection with the construction of the estate roads. The charges are as set out in our fees page, will be included in the Section 38 Agreement which will be prepared by the council. Where highway structures, streetlighting or traffic systems/signals are constructed in connection with the Section 38 works a supplementary charge as shown on the fees page will be made in addition to the standard charge for carriageways.
• The legal costs of the council in connection with the preparation and completion of the Section 38 Agreement will be payable by the Developer. The costs will be advised by Legal Services once instructions have been issued.
• Should the final surfacing of the footways and carriageways be carried out whilst in use by construction traffic, Buckinghamshire Council reserve the right to instruct the developer to re-lay the surface course prior to the works being placed onto maintenance.
• The developer must supply a bond, or a cash deposit as mentioned in section 5.

The Agreement must be between the council and the owner(s) of the land being developed, not any contractor carrying out the actual works. Unless the Legal Services Manager shall agree, otherwise it will be the owner of the land who will be responsible for all payments under the Agreement.

The Agreement will include a time limit for the completion of the roadworks. The time limit will be agreed by the council and the Developer before the Agreement is made, and the Agreement itself will add to that time a further period of twelve months to cover the period of maintenance of the road at the Developer’s expense, before its adoption.

If the works are not completed within the agreed time limit, an extension of time may be considered upon written application to the Legal Services Manager. If an extension of time is granted, the Developer may be required to amend the amount of bond or deposited sum along with additional inspection & administration costs.

One paper and one electronic copy of the road works are required showing the layout to a scale of not less than 1:250, together with all of the drawings as set out in our. Technical design information document/page..

Where the scheme requires streetlighting the plans should also show the agreed position of the streetlights required by the lighting authority. The position of the lights should be shown in Red. Generally, lights are to be sited at the back of the footways. If the lighting is not to be adopted by Buckinghamshire Council, then a letter signed by the local lighting authority confirming the lighting proposals or that no street lighting is required, shall accompany the plans.

The Section 38 Agreement is either to be supported by a Bond, or by way of a deposit of a sum of monies in place of the Bond. The Bond or cash deposit will be required to the value of the full cost of the works including the cost of any alterations to Statutory Undertakers' plant and mains, the developer's agent should make enquiries of the Undertakers at an early stage of the Agreement. The Agreement will not be completed until the requirements of Statutory Undertakers have been established and evaluated. The council will require copies of letters from the Undertakers giving estimates of costs.

If a Bond is the chosen option, then the names and address of the surety (which must be acceptable to the council) need to be included within the application form.

The Agreement provides for the 'Proper Officer' to issue a Certificate (the Provisional Certificate) from the date of which the works within the highway shall be forever open for public use. The developer may make application for the Bond sum/cash deposit to be reduced when the Provisional Certificate is issued.

Any such deposit monies will be duly repaid when the estate roads are adopted in accordance with the terms of the Agreement. This does not include monies paid in connection with the supervision of the estate road, technical reviews, administration, and the preparation of the Agreement.

View what our fees cover below.

View our fees and commuted sums page to see the amounts.

Time charge to be advised & collected by Legal Services.

All drawing checks & approvals (except structures, streetlighting & Traffic Signals) relating to the improvement works specified in the agreement.

All administration (but not the council’s legal costs) work associated with the agreement including initial instructions together with the adoption of the works and updating on council databases.

Inspections of the improvement works specified in the agreement, throughout the construction period up to and including adoption.

Due to circumstances outside of our control the following fees are no longer incorporated with our overall Agreement fees.

Very few S38 agreements include Traffic Signals, so if your scheme is proposing their usage, please refer to the S278 Guidance Notes.

Developers will have to pay for all drawing checks for compliance to national and local design standards relating to the specific requirements & layout of the development.

All administration and technical support associated with all aspects of the street lighting works, from commencement up to and including the update of the council’s asset management database.

Inspections of the implementation of the street lighting works as specified on the approved drawings, throughout construction period up to and including adoption.

Developers will need to pay for all drawing checks and approvals relating to the structural elements of the improvement works specified in the agreement, collation of asset management documentation & updating asset management system.

Developers will need to pay for the future maintenance of certain highway features prior to adoption as detailed on the fees page, some of which are detailed further down the page.

Any additional costs will be borne by the developer. These are in relation to but not exclusive of:

• Traffic Regulation Orders for waiting restrictions/movement orders
• Temporary Traffic Regulation Orders
• Wayleave/Easements
• Oversail licences
• Structure licences
• Planting licences
• Land drainage consent

Where the Lighting Authority requires it, street lighting is to be provided on new roads by the developer. The standard of lighting is to be in accordance with the requirements of the lighting authority and it is the responsibility of the developer to ascertain these requirements.

New estate roads will be generally classified under two main headings namely urban and rural.

Urban areas are generally in the townships of:

• Aylesbury
• Beaconsfield
• Buckingham
• Chesham
• High Wycombe
• Marlow

All other areas will be considered rural.

In urban areas the lighting authority will be the council.

The council has resolved that in respect of developments where it is the lighting authority, it will not adopt lighting systems installed by the developer unless the developer pays to the council a sum as shown on the fees page in respect of each lighting column & illuminated sign erected, being a commuted payment for the future running and maintenance costs of the lighting column and illuminated sign.

The lighting system shall be to the current edition of BS5489, and the developer will be responsible for preparing a design in accordance with the Lighting Brief, Specification and Standard Details for approval by the council.

The developer will be required to provide and erect the complete lighting installation to the council’s approval and also arrange for the supply of electricity and connection to the units along with the application of an approved numbering schedule.

Prior to the commencement of the Maintenance Period the Developer shall be responsible for the energy, routine maintenance and reactive maintenance of the street lighting installation. The Developer will require their own unmetered supply agreement and MPAN number to cover energy costs.

In rural areas the lighting authority will generally be the local Parish Council. A list of contacts for the Parish Councils is obtainable from the council’s website. Some Parish Councils also require the payment of commuted sums in respect of the future energy and maintenance costs of the lighting. As stated, it is the responsibility of the developer to ascertain their requirements prior to commencement of the works.

In cases where the Parish Council does not want to see lighting installed it will be acceptable for a developer not to provide it unless required by council policy, e.g. in the case where traffic calming measures are installed which are required by legislation to be lit. In such instances the council may take responsibility for the future maintenance of the lighting.

The Highways Authority promotes the use of the drainage hierarchy as set out in the Planning Practice Guidance (Paragraph 080) and the use of sustainable drainage systems (SuDS) to manage surface water runoff. The use of SuDS can ease maintenance as water can be conveyed above ground and opportunities for treatment of runoff occur through the SuDS system.

Alternative types of surface water disposal, e.g. soakaways, permeable paving, carry a maintenance liability that increases with time, as permeability reduces due to silting up of the drainage medium. Borehole assisted soakaways, while offering additional discharge to lower ground strata, also carry an ongoing maintenance liability.

These maintenance liabilities place an additional burden on the council and therefore in order to offset these costs the authority will seek a commuted payment. The current 'standard charge' is shown on the fees page and site-specific costs for permeable paving are TBC although these sums may be increased depending upon particular site constraints and/or features. Commuted sums will also be sought in the cases of balancing ponds/tanks, catch-pit manholes and petrol interceptors where these are required to be adopted by the council.

The developer should take note that permission will need to be obtained to connect roadside gullies to any surface water system or watercourse.

Any works or connections affecting an ordinary watercourse will require Land Drainage Consent from either the council as the Lead Local Flood Authority or the Buckingham and River Ouzel Internal Drainage Board.

• Connections to the wider Highways’ drainage network will require consent from Highways Development Management for Buckinghamshire Council as the Highway Authority. This consent is very unlikely to be granted.
• Connections to the sewer network will require consent from the sewerage undertaker.
• Connections to a Main River will require consent from the Environment Agency.

Where your proposed connection does not fall in any of the above categories seek permission from the private landowner. The developer will be required to show proof of such permission by means of copies of correspondence.

Any gully connections that outfall into a private system will need to be subject to an easement to allow the Highways Maintenance teams to access the land in emergency situations although the day-to-day maintenance of the pipework & outfall will remain the responsibility of the landowner.

We will seek commuted sums in respect of future maintenance of any bridge, retaining wall or other structure that is to be adopted. Such sums will be calculated on an individual basis, based upon the Adept Commuted Sum Calculator. It is the designer’s responsibility to complete the Adept Commuted Sum Calculator in collaboration with Buckingham Councils Structures Team. The developer will need to pay for the time spent by Buckingham Councils Structures Team on this collaboration.

The Council will seek commuted sums in respect of future maintenance of any tree that is to be planted within highway limits this sum can be found on the fees page. Any highway trees that the developer wishes to remove must be agreed in advance with Highways DM and a fee that can be found on the fees page, per tree must be paid.

Proof must be supplied that no trees that are subject to a TPO are to be removed without the TPO being revoked.

No trees or hedging to be removed during the nesting season without proof that mitigation measures have been applied.

The Agreement provides for the 'Proper Officer' to issue a Provisional Certificate, from the date of which the works within the highway shall be forever open for public use. The developer may make application for the Bond sum/cash deposit to be reduced by up to 90% when the Provisional Certificate is issued.

The maintenance period is normally at least twelve months, and the Bond/cash deposit will remain in force until the works satisfactorily complete, the maintenance period and the Final Certificate is issued.

The developer should ensure that inspections are carried out at the relevant times and requests via email must be made for certificates.

The developer shall remain responsible for the routine & reactive maintenance for the duration of the maintenance Period along with the supply of energy and all associated costs including any CRC Costs for all the Street Furniture.

Prior to adoption, the developer will be required to provide precise lengths, numbers, details & locations of all adoptable assets shown on as-built drawings as per section 12 below.

In circumstances which are considered to be an emergency by the Proper Officer then the Council, its agents, employees, contractors or otherwise can without notice to the Developer:

• Rectify the emergency expeditiously in order for it to no longer constitute an emergency; and
• Charge the Developer the actual costs incurred as a result of rectifying the emergency.

Developer to supply as appropriate the following documents:

• Drainage vesting certificates.
• Wayleaves/easements
• Oversail licences
• Planting licences
• Structures licences
• Traffic Regulation Orders
• Proof that fees have been paid.
• Proof that Commuted sums have been paid.
• Streetlighting electrical tests/safety certificates
• Buckinghamshire Highways Lighting acceptance certificate
• Proof of Parish council lighting acceptance.
• Buckinghamshire Highways Traffic Signal acceptance
• H&S File

As built plans to be coloured:

• carriageway blacktop – Burnt Umber (light Brown)
• carriageway block paving – Yellow
• carriageway permeable paving (Infiltration) – Pink
• carriageway permeable paving (Tanked) – White (hatched lines to differentiate between private areas)
• footway blacktop – pale Grey
• footway block paving – Orange
• verge – Green
• drainage (storm) – Blue
• streetlights – Red
• tactile Paving – Purple

Information for inclusion on the As-Built plans

• linear meterage of carriageway for each individual section/road.
• linear meterage of remote footway/carriageway for each individual section.
• square meterage of verge
• number & precise location of streetlights
• number & precise location of gullies
• number & precise location of foul and storm water chambers
• number & precise location of trees
• number & precise location of lit and unlit bollards
• number & precise location of crossing controllers
• number & precise location of signal controllers
• number & precise location of CCTV cameras
• number & precise location of soakaways

All transportation fees and commuted sums must be paid prior to adoption.

If not covered by the above, Highways Development Management will give any further advice on the submission of plans and the details required.

6th Floor
Walton Street Offices
Walton Street
Aylesbury
HP20 1UA

Email: [email protected]

Legal matters will be dealt with by the Legal Services Manager who will contact the solicitor given as in (2) above.