PLANNING OBLIGATIONS AND DEVELOPER CONTRIBUTIONS
(including Section 106 contributions, Section 278 obligations and the Community Infrastructure Levy).
Current Situation
Planning obligations are legal obligations entered into to mitigate the impacts of a development proposal. Hart has to consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations.
Conditions should be kept to a minimum and only imposed where they are necessary, relevant, enforceable, precise and reasonable. Developers will have to comply with any conditions attached to their planning permission.
Planning obligations, in the form of section 106 agreements and section 278 agreements, are used where it is not possible to address unacceptable impacts through a planning condition. They may be used to ask developers to provide contributions for infrastructure.
Developers may also contribute towards infrastructure by way of the Community Infrastructure Levy which is a fixed charge levied on new development to fund infrastructure.
See https://www.gov.uk/guidance/planning-obligations
Issues
Planning obligations assist in mitigating the impact of unacceptable development to make it acceptable in planning terms. Planning obligations may only constitute a reason for granting planning permission if they meet the tests that they are necessary to make the development acceptable in planning terms. They must be:
- necessary to make the development acceptable in planning terms;
- directly related to the development; and
- fairly and reasonably related in scale and kind to the development.
These tests are set out as statutory tests in regulation 122 (as amended by the 2011 and 2019 Regulations) and as policy tests in the National Planning Policy Framework. These tests apply whether or not there is a levy charging schedule for the area.
See related policy: National Planning Policy Framework https://www.gov.uk/guidance/national-planning-policy-framework paragraph 34 and paragraph 54.
Applicants do not have to agree to a proposed planning obligation. However, this may lead to a refusal of planning permission or non-determination of the application.
Way Forward
Hart is currently in the process of considering the introduction of the Community Infrastructure Levy.
Hart will have to show and explain how their proposed levy rate (or rates) will contribute towards the implementation of their relevant plan and support development in the District. They must publish an infrastructure funding statement to identify infrastructure needs and costs, anticipated funding from developer contributions, and the choices the authority has made about how these contributions will be used.
Should this be introduced then Hart would collect the Levy.
See https://www.hart.gov.uk/community-infrastructure-levy
Further Information
Section 106 Agreements
Section 106 (S106) Agreements are legal agreements between Local Authorities and developers; they are linked to planning permissions and can also be known as planning obligations.
They refer to Section 106 of the Town and Country Planning Act 1990.
Section 106 agreements are used when it is considered that a development will have significant impacts on the local area that cannot be moderated by means of conditions attached to a planning decision.
For example, a new residential development can place extra pressure on the social, physical and economic infrastructure which already exists in a certain area. A Planning obligation will aim to balance the pressure created by the new development with improvements to the surrounding area ensuring that where possible the development would make a positive contribution to the local area and community.
When a planning application is submitted, the Council will assess the application as to whether the development would cause a significant impact to the area and community.
The S.106 will vary depending on the nature of the development and based on the needs of the District. The most common obligations include:-
- Public Open Space
- Affordable Housing
- Education
- Highways
- Town Centre Improvements
- Health
For contributions towards education, the Local Plan should consider existing or planned/committed school capacity and whether it is sufficient to accommodate proposed development within the relevant areas. Developer contributions towards additional capacity may be required and if so this requirement should be set out in the Plan. Requirements should include all school phases age 0-19 years, special educational needs (which could involve greater travel distances), and both temporary and permanent needs where relevant.
The content of the S.106 agreement is agreed through the consultation period of the planning application with the relevant parties and planning officer. This results in the S.106 Legal Agreement prepared by the council's solicitors.
See https://www.legislation.gov.uk/ukpga/1990/8/section/106
Section 278 Agreements
A section 278 agreement (or S278) is a section of the Highways Act 1980 that allows developers to enter into a legal agreement with the council to make alterations or improvements to a public highway, as part of planning approval.
A highway authority may enter into an agreement to undertake works where the whole or part of the cost is paid for by the developer. The costs may cover legal, staffing, land and construction costs for the works and may also cover some future maintenance costs.
The agreements and payments are enforceable by law and the highway authority may take action to prevent a development being used should the agreement not be complied with.
See https://www.legislation.gov.uk/ukpga/1980/66/section/278
Community Infrastructure Levy
The Community Infrastructure Levy is a charge which can be made by local authorities on new development in their area and can be used to help them deliver the infrastructure needed to support development in their area.
The levy only applies in areas where a local authority has consulted on, and approved, a charging schedule which sets out its levy rates and has published the schedule on its website.
The levy is charged on new development. Normally, this requires planning permission from the planning authority, the Planning Inspectorate, or the Secretary of State on appeal but the levy may also be payable on permitted development.
Charging authorities must identify the total cost of infrastructure they wish to fund wholly or partly through the levy. In doing so, they must consider what additional infrastructure is needed in their area to support development, and what other sources of funding are available, based on appropriate evidence. Information on infrastructure needs should be drawn from the infrastructure assessment that was undertaken when preparing the Local Plan.
See https://www.gov.uk/guidance/community-infrastructure-levy