Last November, a Court of Appeal ruling raised some interesting issues for developers, highways engineers and asset managers alike. The case centred around the question of whether on-going maintenance costs of highway infrastructure delivered by developers can lawfully be incorporated into Section 38 Highways Agreements.
By way of background, Section 38 of the Highways Act (1980) provides a mechanism by which the local highway authority may agree to adopt infrastructure constructed by developers as “a highway maintainable at the public expense”. By entering into such an agreement, the...