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Birmingham City Council

Frequently Asked Questions

Under Construction

What is a Section 38 Agreement?
An agreement under Section 38 of the Highways Act allows roads and associated infrastructure constructed by third parties to be offered for adoption as public highway.

What is a Section 278 Agreement?
An agreement under Section 278 of the Highway Act allows a third party to carry out works on the public highway.

Does a developer have to offer roads that they construct for adoption through a Section 38 Agreement?
No. It is the choice of the developer and they can choose to keep roads that they construct private.

What is a private street?
A 'private street' is a street that is not maintained at public expense. It can be a private road or a public road which has not been 'adopted' by us This means that the council, as a highway authority, is under no obligation to carry out repairs to the street, even though it might be a highway which the public has a right to use.

What is the difference between a private street and a private road?
Public roads we have not adopted are streets that the public can use. Vehicles and pedestrians may be able to use the road. A private road is a road that the public do not have any right to use.

Who is responsible for a road if it is not adopted?
Where roads are not adopted the responsibility for maintenance and general upkeep of a private street rests with the frontagers or street management company.

Are all roads suitable for adoption?
The Council may adopt roads where it is demonstrated that they serve sufficient utility to the public to justify being maintained at public expense and that they have been designed and constructed to an appropriate standard.

Existing streets will not normally be considered for adoption unless they are brought up to a satisfactory standard. For example, the street may be unpaved or of poor construction, have inadequate kerbs, highway drainage or lighting.
What is the difference between a private road and a private street?
Private roads are usually gated and the public have no right of access. Private Streets are public highways where traffic and street licensing laws apply and they differ from ‘private roads’ as they are not gated and it is historically established that the public have right of access. The Highway Authority has a duty to ensure that the street is accessible, but do not have a duty to carry out routine inspections. We therefore rely upon the public reporting obstructions to free passage.

How can a private street be adopted?
Under the provisions of the Private Street Works Code contained in Sections 205 to 218 of the Highways Act 1980, the street works authority, that is the County Council, may resolve to make up the private street to a satisfactory condition by providing any or all of the missing features or by improving the standard of any existing features. When the works have been completed to the satisfaction of the street works authority, the authority may resolve to adopt the street as a highway maintainable at public expense.

The costs of the private street works will usually be met by the owners of property fronting the street based on the relative frontage lengths, therefore the street works authority will not normally initiate a private street works scheme unless it is supported by the majority of the affected property owners.

When developers apply for a Section 38 Agreement is there a time period in which they must be completed?
Where developers apply for a Section 38 agreement we cannot force them to complete the agreement within a certain timescale. While we try to complete the agreement as quickly as possible it is dependent on the developer meeting our requirements. Sometimes matters that are outside the control of the Council result in delays to the agreement being signed.

When does the Council become responsible for a road in a new development?
When a Section 38 Agreement is signed it includes requirements for the roads and supporting highway features, such as streetlights, to be constructed and installed to a certain standard.

The Council will issue a certificate when works are completed to our satisfaction. The roads then go onto a 12-month maintenance period during which the developer is responsible for the maintenance.

At the end of the maintenance period and subject to any defects being repaired, such as a broken kerb or a failed carriageway, a completion certificate is issued and the roads become maintainable by the Council.

Who is responsible for the drainage of the development?
Where the Council are adopting a road we will also adopt and maintain the highway drainage road gullies and their connections and sometimes a carrier highway drain (a drain that only carries highway surface water).

We are not responsible for surface water sewers that take both highway and private surface water as the water company maintains these. Where there is a surface water sewer under the road there is a separate agreement between the water company and the developer under Section 104 of the Water Industry Act 1991. In these cases the Council will not adopt the road until the water company has adopted the sewer.