The problem could be solved in the terms of the planning agreement and documentation if it was a development condition that no house could be sold or inhabited until all the agreements and supporting bonds were in place, but the author never saw this as there is always pressure to complete the property. Sometimes there may be delays in the completion of the adoption of the road, this may be due to the fact that the developer begins to build the road before concluding the agreement on article 38, trying to change the standard conditions of the agreement of the county council under article 38, the road is built slowly or is unfinished, the road is not built to county council standards, There may be problems with the acceptance of sewers under the new road, the road may be completed, but there may be outstanding construction defects that the developer needs to repair. This can include things like broken street lights, potholes, overgrown edge strips, broken drain covers. In this context, a road is considered private unless it is accepted as a public road or is the subject of a legal agreement providing that it becomes a motorway that can be maintained at the expense of the State. If a section 38 is to be introduced and the road is built to acceptable standards, it may be different from roads that must remain under the control or ownership of the developer. Less stringent specifications are therefore necessary if one does not want to adopt roads. Many new country roads are not being built to acceptable standards. Each local authority is different from what it will and will not allow. In reaching their conclusion, both the High Court and the Court of Appeal considered the alternatives available to developers who, for whatever reason, do not wish to enter into an agreement under section 38. Both courts considered section 37 of the Highways Act, 1980, which allows a developer to legally designate a trail as a road that can be served at public expense by announcing its proposed opening. In response, the road traffic authority may either certify that the route has been satisfactorily designed and justifies a hypothesis, subject to a maintenance period of 12 months and the fact that, during this period, the road is actually used as a motorway, after which the motorway becomes a motorway that can be maintained at the expense of the State; Or the road authority may apply to the court of first instance for an order confirming that the road does not have sufficient “public interest” to provide maintenance at the expense of the state. If the road traffic authority refuses to issue a certificate, the developer may appeal to the District Court to obtain a certificate of equal effect. Redrow Homes confirms that a section 38 agreement may provide for the future cost of maintenance, construction or improvement (whether in the form of a commuting sum or otherwise) after a road or road has been accepted as a publicly available road.

If the developer does not advance the work satisfactorily in accordance with the agreement, the Road Traffic Authority will always first try to resolve the problem through negotiations. In case of failure, the road traffic authority has the possibility to ask for the deposit to pay for the completion of the motorway works. The agreement is also secured by a bond or financial payment that the road traffic authority may require in certain circumstances, for example, the developer will go bankrupt/go into liquidation before the roads are completed. The Highway Authority does not have the authority to insist that a developer enter into an S38 agreement. However, many developers also consider it the best option, as the adoption process can be lengthy, and if it takes place after a route has ended, the developer is responsible for all maintenance until adoption takes place. Exceptions (§ 38 Agreements) There are certain exceptions to the application of the Advance Payments Act, one of which is an agreement under section 38 of the Roads Act 219(4)d. We encourage proponents to enter into an agreement in accordance with this section as an alternative to depositing the funds required under Section 219. A developer may offer a pathway to adoption without an agreement under Section 38. Provided the roads are built to acceptable standards, we can get back on the road with an act of dedication under the Roads Act, 1980.

The courts have recognized that a prudent developer would be wary of committing to a perpetual undertaking and would only enter into a section 38 agreement if it was in its economic interest to do so. In practice, the Article 37 procedure is an imperfect substitute for a bilateral agreement. For example, would an impasse satisfy the public utility test? The risk that a road will not meet the utility test is greater because the section 37 procedure does not allow developers to obtain prior approval of the location and specification of country roads. The time and cost of litigation can be difficult to predict, but they will not be negligible. The burden of proof lies with the proponent to prove to the judges that the criteria of section 37 are met. Acceptance under section 37 allows the proponent to construct the road and complete the development without the need for a formal road agreement with the Road Traffic Authority. If the road is deemed sufficiently useful to the public to warrant maintenance at the expense of the State and has been constructed to acceptable specifications, the Road Traffic Authority would accept notification of the proposed inauguration by the developer and, after a maintenance period of 12 months, the road would become maintenance at The Expense of the State. The agreement also generally states that all fees associated with the agreement must be paid by the developer. This may include a fee for the preparation of the agreement, all inspection fees, ongoing maintenance, and all costs related to design review. The agreement may also require a loan from the developer to cover the road traffic authority against any possibility that the developer will not carry out the work or not carry out the work in accordance with the standard required for acceptance or not maintain it during the agreed initial maintenance period (often 1 year). The road authority can then use the depot to remedy any violation by the developer.

In practice, road authorities are reluctant to accept changes to their pro forma agreements, and ongoing legal negotiations to explicitly limit liability can be highly controversial, especially if standard agreements do not specify (and even indefinitely) such liability. The Court of Appeal may have been a little too optimistic in its assumption that the parties are “negotiating reasonably.” Section 38 highway agreements rank at a low level in the hierarchical order of development agreements. § 106 Town planning agreements are eagerly negotiated to trigger the release of the building permit. Section 278 work on the existing road can be cost-heavy and the building permit required, and therefore occurs early in developers` profitability planning. Construction costs in accordance with Article 38 shall also be included in the total development costs. However, the formalization of the dedication and adoption agreement often “standard theme” usually lags behind in the development process. It is not uncommon for the first phase of work to be completed before an article 38 agreement is formally concluded. .