Information for developers - Major works agreement pack

Introduction

This guidance pack is designed to give Developers and their agents, information on how to correctly construct highway improvements within Staffordshire (but excluding Stoke-on-Trent) with permission from the Local Highway Authority, Staffordshire County Council, following the successful conclusion to a planning application.

The highway works secured under the Planning Permission will be carried out under a Major Works Agreement, (“Major WA”), either in the form of an agreement under Section 278 of the Highways Act 1980 (“S278 Agreement”); or an agreement under Section 111 of the Local Government Act 1972 and Section 130 of the Highways Act 1980 (“S111 Agreement”).

CDM and health and safety 

Prior to submitting the application for highway works the developer has undertaken key tasks in relation to the wider project and is responsible for the concept, planning, programming, funding and delivery. As a consequence, and by completing the application for a highway works agreement it is agreed that the developer has already been elected as named Client under the CDM Regulations 2015 and that they will continue with this role throughout the project.

All works are to be carried out in accordance with all applicable Health and Safety requirements and legislation including those of the Construction (Design and Management) 2015 Regulations. A copy of the assessment and appointment of the Principal Designer is to be provided and the Pre-Construction Information relating to the construction of the adoptable highway works elements of the project shall be submitted to the County Council prior to the commencement of the highway works. Upon completion of the highway works a copy of the Health and Safety File shall be delivered to the County Council.

The principal designer and principal contractor must be able to demonstrate that they have the skills, knowledge, experience to carry out the work they are being appointed for in relation to the specific scheme. This level of skills, knowledge and experience should be proportionate to the scale and complexity of the project and the nature of the risks to health and safety.

Please note: Minor WAs can only be used for works that conform to the following criteria in Fig.1 on page 4; if any of these statements are true then a Major Works Agreement will be required. Further details of Major Work Agreements are available from the Highways Agreements link in Appendix 1.

Criteria for determining major works

There are many types of proposals that may be required as a result of development that can be covered by a Major WA, e.g., a signalised junction, a new roundabout, junction improvements, etc. The below flowchart shows general practice when reviewing works types to determine whether a Major or Minor Works Application will be required. However, the final decision will be made by SCC. Further information on Minor Works Agreements is available from the link in Appendix 1.

View the flowchart (text version)

Downloadable flowchart (246 KB)

Types of major works agreements

The normal forms of contract are the New Engineering Contract (NEC3 – April 2015) Engineering and Construction Contract (ECC); Options A or C as determined by the County Council.

Section 278 agreement

Under terms of a S278 Agreement, the County Council is the employer under the construction contract and is responsible for letting the contract once technical approval to the design and contract documents has been given, and the legal agreement and land transfer (if any) has been completed. The Developer will be required to pay all of the County Council’s estimated costs including commuted sums and estimated Part 1 claims (of the Land Compensation Act 1973), and the estimated works costs (including contingency), prior to completion of the Agreement.

Section 111 agreement

Under the terms of a S111 Agreement, the Developer is the employer under the construction contract and is responsible for awarding and managing the contract once the Agreement has been completed. The County Council will monitor the works; agree completion and the end of the defects period. The Developer will be required to pay all of the County Council’s costs including commuted sums and estimated Part 1 claims (of the Land Compensation Act 1973) and provide a cash deposit or a bond equivalent to the estimated works costs (including contingencies) in advance of the completion of the Agreement.

Section 278 & Section 111 Agreements 

Developers should be aware that for both agreements contractors who are proposed to carry out the works will need to be approved by the County Council; following reference to Constructionline (silver membership) and financial and technical references may need to be provided, as required. 

Any tendering that is required tendering is the Developer’s responsibility under both agreements. 

Under both agreements, the technical approval is valid for 12 months from the date of the sealed agreement.

Commuted maintenance sums

Provisions shall be made within either Agreement to secure, where appropriate, commuted maintenance sums in respect of:

• On-street car parking
• Traffic signals where these are necessitated to accommodate the development
• Highway retraining walls / structures, etc. 
• Unconventional materials (at the discretion of the county council) 
  • Landscaping, as appropriate. Please note that in cases where landscaping includes amenity planting, the county council will look for a district or borough council to take responsibility for future maintenance under a licence. 
  • Combined kerb and drainage systems, hydro-brakes, large diameter pipes and culverts
  • Block paving, bollards and bus shelters.

Please note: this is an brief sample and not a comprehensive list and is in line with section 38 agreements. 

Section 38 agreements

In developments where there will be a new section of highway created, a separate Section 38 Agreement may be required, dependant on the situation. This agreement is independent of S278 or S111 Agreements; and certain design criteria concerning detailed engineering design of the roads and footways, street lighting and drainage is also required to be met before a Section 38 Agreement can be undertaken, as governed by Section 7 of the Staffordshire Act 1983. If you would like further information on this specific type of agreement, please contact road.adoptions@staffordshire.gov.uk or call 01785 276645.

Making an application

Application fees

The technical approval of the design and any contract documents including preparation of the agreement will involve a certain amount of staff time. In the event that the agreement is not completed, it is essential that the county council ensures that the cost of any abortive work is not borne by the public purse. As such, the county council will require payment in advance of any costs which the county council will incur in advance of the Major WA being entered into. An initial fee is payable on application to enable the county council to commence the necessary work.

Payment can be made by BACS or cheque at the same time as your application is made. Details are available in Appendix 1 at the end of this document. You must provide the reference D9999Z followed by your planning reference number.

As Staffordshire County Council are providing a statutory service, we don’t normally provide invoices for the Application Fee. If an invoice is requested from us, please be aware that this will cause a delay to your application.

The “Works Value” on the application form should be referred to for the purpose of calculating the application fee. The application fees are as follows:

Please note: the above fees include a legal undertaking to expedite legal instruction

Once the county council has carried out work to the value of the application fee, the county council will require further payment(s) on account to cover the county council’s costs of any further work before it is carried out. The balance of the county council’s estimated costs for the scheme will be required to be paid before the agreement is completed.

What is required at application?

You must read this pack and the application form in full to understand the implications of an Agreement. The application form is available online via the link in Appendix 1 and the items listed within Table 2 below are a mandatory requirement as part of your application.

The application will not be processed until all the mandatory information listed in table 2 is received.

Please ensure that you number your attachments appropriately as per the relevant numbers above and all documents are provided to us in the appropriate file format as indicated in table 3: 

These items can also be submitted if you have them at the time of application: 

What happens when I apply

We will send you an acknowledgement that we have received your application within 5 working days and check all supplied details to make sure you have completed everything needed and made payment in order to process the application. If there is any information missing, we will contact you and halt processing until we have received all required documents. 

Your application will be assessed by either a County Council engineer or will be commissioned to the Staffordshire Design Hub of the County Council’s strategic partner, Amey, who will contact you directly to discuss the proposed works and arrange a meeting to discuss the requirements for the delivery of the project.

At the appropriate stage, the County Council will decide which type of Major WA is appropriate (i.e. S278 or S111 Agreement) and will instruct its legal department to commence the legal process.

GDPR

For further details on the policy GDPR, please visit our GDPR webpage. 

'Infrastructure Plus' design and build service

Through the County Council’s strategic partner, Amey, the design and build of the highway works can be delivered under the Infrastructure Plus (I+) contract. Using this end-to-end service can bring efficiencies and savings whereby, Amey Consulting can undertake the design and Amey Highways can undertake the construction of the works with both being fully aware of the Council’s specification, requirements and expectations. Selecting this option removes the need for a separate technical design check, significantly reducing time and costs for Developers through a more streamlined process.

Additional benefits include the option to offer Early Contractor Involvement during the design stage to help value engineer the works, ensuring the scheme is deliverable, and, if Amey Highways are appointed as Principal Contractor, supervisory costs can also be reduced.

For further details on this service please email AmeyDeveloperEnquiries@staffordshire.gov.uk 

The legal process 

Form of agreement

In the interests of fairness and consistency the County Council operates Major Works Agreements as standard Agreements and does not accept substantive amendments to them. These provide the terms on which the County Council, as the Local Highway Authority, in the discharge of its statutory duty is prepared to allow works to be carried out on the highways for which it is responsible. Highway works carried out under such Agreements are for the benefit of the development and as such any risk, financial or otherwise, is for the developer to bear.

When the County Council and the developer are both in a position to proceed with the Agreement, a draft will be provided by the County Council’s Legal Services Unit.

Searches

It will be necessary for the County Council to carry out the usual searches that are carried out when purchasing land, however every piece of land is different and additional searches may be required depending on aspects such as the type, location and past uses of the land that is coming into the highway. The County Council’s legal representative will advise the Developer’s legal representative of the cost of such searches at the relevant time. Please bear in mind that the County Council will be unable to complete the S278 Agreement and transfer / S111 Agreement with dedication until all relevant search results have been received and the County Council’s legal representative has confirmed they are satisfactory (or any concerns have been addressed to the County Council’s satisfaction).

Land associated with S278 agreements

In the case of S278 Agreements any non-highway land required to be taken to form part of the public highway upon completion of the highway improvement works, shall be transferred to the County Council free from all encumbrances simultaneously with the completion of the s278 Agreement. 

A Land Registry compliant plan will be required indicating the area of land to be transferred (see criteria below).

Where land is to be transferred to the County Council under a S278 Agreement, the Developer will need to show that the title to the land is registered with the Land Registry by providing up to date Office Copy entries including register and title plan for each title, together with all relevant documents referred to on the title(s). If any of the land to be transferred is unregistered, the County Council will require the Developer to register the title at the Land Registry in advance of the commencement of the legal process. Please refer to the general comments above regarding land coming into the highway.

Land associated with S111 agreements

In the case of a S111 Agreement any non-highway land required to be taken to form part of the public highway shall be dedicated free from all encumbrances to the public for use as highway.

A Land Registry compliant plan will be required indicating the area of land to be dedicated (see criteria below).

Where land is to be dedicated to the public to form part of the public highway under a S111 Agreement, the Developer will need to show that he has registered title to the land by providing up to date Office Copy entries including register and title plan for each title, together with all relevant documents referred to on the title(s). If any of the land to be dedicated is unregistered, the County Council will require the Developer to register the title at the Land Registry in advance of the commencement of the legal process. Please refer to the general comments above regarding land coming into the highway.

Criteria for land registry compliant plans (land transfer / land dedication) 

Any plan showing land to be transferred or to be dedicated must:

• be accurately drawn to a stated scale on A3 or A4 size paper only – preferred scales are: (a) 1:1250 – 1:500 for urban properties (b) 1:2500 for rural properties (fields and farms etc)
• show the land to be transferred or dedicated edged in red
• include a north point
• show sufficient detail to be identified on the Ordnance Survey map
• clarify its general location by showing roads, road junctions or other landmarks
• be based on a scale of metric measurement
• include a bar scale
• state in square metres the area of land to be transferred or dedicated
• include copyright disclaimer with the OS licence number

And

• must not be marked as “for identification only” or similar wording
• must not be endorsed “do not scale from this drawing” or similar phrase, or include a statement of disclaimer used under Property Misdescriptions Act 1991. 
• must not include topographical survey
• must not show the proposed development or highway works

Licence to access private land

In the case of a s278 agreement, the County Council may require access to the land adjoining the highway works in order to carry out the highway works, and as such a licence to access such land will be provided for in the s278 agreement.

Payment of the completion sum 

All monies payable pursuant to a S111 Agreement or a S278 Agreement must be paid in full, in advance of completion. Payment can be made by:

• Bank Transfer - The County Council’s bank details will be provided on request.
• Solicitor’s Client Account Cheque
• Personal/Company Cheque - Please note that the County Council needs to have cleared funds before completion of the agreement. Consequently, if payment is made by way of a personal or company cheque will lead to delays to completion and may result in the development not being able to progress as programmed.

Engrossments

It is standard practice that the County Council prepares the engrossments. If a matter becomes time-critical, a Developer’s legal representative may in certain circumstances be permitted to prepare these but such engrossments must be prepared in accordance with the County Council’s standard practice which will be advised. The County Council requires all parties to execute all parts of an Agreement or Transfer and the correct number of engrossments must be prepared.

Please note: that the executed engrossments must be returned to the County Council undated. It is for the County Council to undertake completion when ready to do so. 

Failure to adhere to the County’s requirements may lead to delays in getting Agreements and Transfers or other documents sealed on a requisite day, and thereafter completed.

Power of attorney

A Developer will need to provide the County Council with its correct execution clause, to be included within the Agreement. If an Agreement is to be executed by a delegated authority under a power of attorney, we will require a certified copy of the necessary Power of Attorney Deed in advance of completion. 

Sealing of documents

The County Council’s sealing days are Tuesdays and Thursdays**. Please note that any Agreements due in for sealing must be received by the County Council’s Legal Services Unit by the day before the relevant sealing day. Failure to provide the requisite documentation in accordance with the above may result in completion being delayed. 

Coronavirus

Please note that during the Coronavirus crisis, legal staff are working remotely and do not have immediate access to certain facilities, which may at times cause delays to the process or necessitate different procedures being followed. In particular, the County is currently only able to seal documents once a week on a Tuesday, and so documents which need to be sealed by the County must be with the County by Monday of that week. Failure to do so may delay completion.

Highway network management 

You should also be aware of additional controls on the actual highway works. As Local Highway Authority, the County Council’s duty, as covered in the New Roads and Street Works Act (NRSWA) 1991, and as amended by the Traffic Management Act 2004, is to effectively manage all works and activities on its highway network, and secure safe and expeditious movement as much as possible. The County Council operates this management. 

Ability to influence execution of works

The County Council will always aim to accommodate your work programme, but it should be appreciated that the timing of works has to be managed and co-ordinated to ensure that highway users are not unnecessarily disrupted. In aiming to reconcile Developer’s aims and our statutory duties, the County Council may: 

• Require an alternative agreement is sought to cover the proposal
• Request an alternative construction method
• Seek a refinement of the design in the context of the planning permission
• Restrict the timings of works

When it is necessary to impose such requirements, the applicant will be expected to bear the cost. For example, additional costs may be incurred where a proposal requires restrictions on the permitted working hours or a delay in commencement for a quieter period on the network, such as a school holiday. The applicant is required to inform the contractor of all conditions applied to the Agreement.

NRSWA notice notifications

As from the 1 April 2020, Staffordshire County Council is a permitting authority, whereby highway works are served as Permits which book road space and ensure effective co-ordination. Major WAs will also require some form of Permit, dependent upon the Agreement undertaken:

• S278 agreements: As the county council is the employer, we will apply for permits. The timing and duration of the works will be agreed between the county council and developer. 
• S111 agreements: As the developer is the employer the principal contractor will apply for Permits. The timing and duration of the works will be agreed between the County Council and the principal contractor

Further details are available online at the link in Appendix 1. 

Other permissions or licences

Regardless of either Major WA, there may be cases where extra licences are required for works which do not form part of a S278 or S111 Agreement, e.g. the installation of private drainage would require a Section 50 Private Apparatus licence applied for by the land owner, Further information is available online at the link for in Appendix 1.

Statutory undertakers apparatus 

Diversionary works and new service provision

Statutory Undertaker’s apparatus is usually affected by development works in two ways: diversionary works, where the proposed new highway will be formed over the apparatus which may not then be at the correct depth requiring apparatus to be lowered or diverted; or new service provision, where the new development will need serving with gas, water, electricity and telecoms from the existing mains in the current highway. 

Depending upon the type of Major WA, there are different ways in which the Statutory Undertakers can be consulted about their apparatus. For a S278 Agreement, subject to monies being paid in advance to cover consultations and proposed works, the County Council can manage the interface with the Undertakers on your behalf. You must ensure you request in writing a minimum of 16 weeks prior to works starting for the County Council to serve any requisite notices on the Statutory Undertakers under NRSWA. For S111 Agreements, you must ensure you have served notices yourselves.

Proper consultation must take place with all Undertakers to ensure information about what apparatus may exist in the vicinity is obtained; and to allow the Undertakers an ability to assess the impact on its network and any supervision or procedures which need to be followed when working near their assets.

Statutory undertaker programme and delivery timescales

You are advised to contact the Statutory Undertakers at an early stage as there can be delays in programming works and ordering equipment, especially in times of seasonal activity.

Undertaker works notifications are strictly controlled and it is only the Transport and Network Management Unit that can agree flexibility to the timescale requirements, if they don’t then Undertakers are required to adhere to the Notice periods shown in table 5. Please bear these timescales in mind when programming your works.

Innovative collaborative working

To minimise the disruption to highway users as much as possible, the Transport and Network Management Unit will seek to identify all highway works relevant to the development in that they are co-ordinated and delivered as one package, minimising repeat occupation and excavation of new surfacing. There are numerous examples whereby all development highway works have been co-ordinated by Developers with the assistance of the Transport and Network Management Unit.

Transport and Network Management Unit has an award winning innovative culture of working with Statutory Undertakers and contractors; bringing together works and traffic management from different providers in a collaborative way that reduces network occupation, creates a positive response from utility providers in meeting programme targets and can reduce your overall costs. If you would like to discuss this further please contact trafficandnetwork@staffordshire.gov.uk 

Traffic management applications

It is likely that temporary traffic management will be required during your construction works which also require separate permissions. Further information is available via links in Appendix 1.

Please note: where a Temporary Traffic Regulation Order is needed (e.g. for a road closure, weight limit, speed limit) a minimum of 12 weeks is required to carry out the statutory process. It is strongly recommended that traffic management is determined and applied for as early as possible. 

Works affecting highway structures

In situations where the construction works affect a highway structure (e.g. bridge, culvert, subway, retaining wall, sign/signal gantry, etc.), or where temporary structures (e.g. scaffolding/hoarding) could present a danger to the public, guidance should be sought from chris.plant@staffordshire.gov.uk

Guidance and conditions

On application

Whilst the application is being processed by the County Council, you are required to contact all necessary organisations to notify them of the proposal, seek objections or concerns and obtain copies of existing apparatus in the location in question. A list of these organisations is available from the Transport and Network Management Unit via trafficandnetwork@staffordshire.gov.uk  

Agreement validity

Once an Agreement has been completed, works should take place before the planning permission expires, which unless otherwise specified in the consent, is within 3 years of the date of the planning consent.

Installation / construction and reinstatement

Once an Agreement has been completed, you must ensure that:

• The contractor is NRSWA accredited, insured (£10m public liability ins.) and applies for and receives a Permit before works commence
• Works are planned correctly and carried out safely and expeditiously
• All bituminous mixtures used in the works shall be laid by contractors registered to and operating in accordance with the “Sector Scheme 16 for the Laying of Asphalt Mixes"

Protocol following completion of works

When the work as specified in the Agreement has been satisfactorily been completed and the Agreement has come to an end there is no ongoing entitlement to work on the highway, except where remedial works are required, which will require a further Permit. Developers must ensure that adequate work quality checks are undertaken the County Council will carry out ‘random’ inspections on the works and if defects are identified, financial charges could be attracted. Further information is available in Appendix 1. 

Obligation to indemnify the county council 

Developers are required to indemnify the County Council against all claims including injury, damage or loss arising from any aspect of the works. It is your responsibility to ensure that any contractors or sub-contractors have insurance in place and must cover a minimum of £10, 000,000 (ten million pounds) for each claim with no limit to the number of claims.

Developers will be expected to indemnify the County Council in respect of any claims made under Part 1 of the Land Compensation Act 1973 including all the County Council’s incurred costs in dealing with such claims. The County Council will require an estimated sum in respect of such claims to be paid to the County Council on the signing of the S278 Agreement or S111 Agreement and this will be held for up to the 6 year claim period which commences 12 months after substantial completion.

Developers will be expected to pay the costs of insulating buildings (including any grants) incurred arising from the duty of the County Council to do so under Section 20 of the Land Compensation Act 1973 and under any Regulations made there under arising from the carrying out of any highway improvement or traffic management scheme. 

partoneclaims@staffordshire.gov.uk 

Appendix 1 - Further information

Major works agreement application form

BACS details for Staffordshire County Council

For Staffordshire County Council payment details, please contact payments@staffordshire.gov.uk.

More information

GDPR and Privacy

Staffordshire County Council Highways Base Specification

Minor works agreement pack

Staffordshire County Council information for developers

Permit scheme

Staffordshire County Council Road Adoptions (e.g. Section 38 agreements) - road.adoptions@staffordshire.gov.uk

Staffordshire County Council Transport and Network Management Unit (including permits and licences, Traffic management applications and guidance, registered contractors, temporary excavations (permit to dig). 

Local planning authority (borough / district) - local plans in Staffordshire