What Is A Section 38 Highways Agreement

The procedure required to reach an agreement can take time and time, and it is therefore desirable to get in touch as soon as possible with the authority of the motorways. The courts have recognized that a prudent developer would refrain from engaging in an indeterminate obligation and would only enter into a Section 38 agreement if it was in their economic interest. In practice, the section 37 procedure is an imperfect substitute for a bilateral agreement. For example, would a dead end pass the municipal services test? The risk that a road will not comply with the utility test is greater, as the procedure in point 37 does not allow developers to obtain prior approval of the location and specifications of country roads. The time and cost of the legal process may be difficult to predict, but they will not be negligible. The burden of proof rests with the proponent to show the judges that the s37 tests are completed. Paragraph 38, paragraph 1, provides that the appropriate minister or the road transport authority, when a person is responsible for the maintenance of a motorway under an order or a term, confinement or regulation, may agree with that person to take over the maintenance of that highway, so that the highway on which the agreement relates can be provided on the date set out in the agreement. , a highway that can be guaranteed at public expense and that erases that person`s responsibility for maintaining the highway. The Highway Authority (Council) does not have the power to insist that a developer enter into an S38 agreement. However, many developers consider this also the best option, as the adoption process can be long, and if it takes place at the end of a route, the developer is responsible for all maintenance work until the adoption takes place.

Before entering into an agreement, the developer must have obtained the building permit, including permission for all reserved questions. The building permit will generally include an indicative ordinance of the roads to be adopted. A Section 38 agreement is an agreement between the Council and the developer (Highways Act 1980, Section 38), which describes work on new roads that, once adopted, will be part of an adjacent highway system.