When assessing a planning application, the council can secure planning obligations (also referred to as "section 106 agreements" or "planning agreements") to help mitigate the negative impacts caused by a development.
These can include site specific issues as well as the provision of infrastructure, or facilities necessary to support the additional residents and help achieve the council’s policy objectives.
Planning obligations can cover a range of facilities and services including:
- affordable housing
- payments towards required education provision
- ensuring agricultural dwellings are not sold separately from the land they serve
- ensuring residential annexes are occupied by dependent relatives and are not sold as a separate independent dwelling
- requiring infrastructure (roads, drains) to be provided
- requiring land to be dedicated and equipped as open space or playgrounds
- requiring sums to be paid for the provision of offsite infrastructure or the long term maintenance of open space
Planning obligations are used to address negative impacts caused by a development and should not be seen as a way for the council to share in the profits from a development or as an inducement offered by a developer as a way to gain planning permission. Unrelated or unnecessary planning obligations are not a means to secure planning permission for unacceptable development. Planning obligations should always be relevant to a development and contribute to achieving the planning aims of the council.
Along with conditions, planning obligations provide a means to ensure that a proposed development contributes to the creation of sustainable communities.
What may be included as a planning obligation?
Planning obligations can be positive by requiring a developer to do a specific thing or negative by restricting development or use of the land.
In general, planning obligations may secure one or more of the following:
- a financial contribution
- works in kind
- restrict the development or part of the development or the use of the land in specified way
- require specified operations or activities to be carried out on the land
- any other measure required to mitigate the impact of the development
In accordance with circular 05/05 and s122 of the community infrastructure levy regulations 2010/948, planning obligations must meet the following tests:
- relevant to planning
- necessary to make a proposed development acceptable in planning terms
- directly related to the proposed development
- fairly and reasonably related in scale and kind to the proposed development
- reasonable in all other respects
A fundamental guiding principle is that planning permission cannot be bought or sold.
Planning obligations are secured through legal agreements (also called "section 106 agreements") or unilateral undertakings that may be entered into by anybody with an interest in the land that relates to a planning application. This would normally involve the council and a developer agreeing by way of planning obligations, certain works or payments for measures that are required before planning permission may be granted.
Planning obligations relate to a planning permission but are also attached to the land and registered as a local land charge. This means that obligations cannot only be enforced against those who entered into it but against anybody who gains title to the land. This ensures that if land is sold with a planning permission and related planning obligations, those obligations can be enforced against the new owner(s) of the land, i.e. successors in title. Because planning obligations run with the land, all owners, lessees and mortgagees must be signatories.
Use of financial viability appraisals
It is recognised within planning policy that in dealing with development proposals, financial viability concerns may arise. These may arise genuinely, for example where remediation costs are exceptional.
In the interests of meeting planning policy objectives and/or regeneration initiatives, the council may, in such circumstances, consider the merits of individual development proposals, through an open book appraisal. In these cases, the council will require detailed financial appraisals to be provided by the applicant to support their argument.
An independent financial assessor may be required on complex applications. This approach is advocated within circular 05/2005. The assessor to be commissioned by the council and the costs are to be met by the applicant.
Monitoring of planning obligations
The details of agreed planning obligations will be held on an electronic database in order to track compliance as the development proceeds.
The council will liaise with developers (and applicants) and use other means of monitoring including site inspections, to ensure that applicants discharge their obligations at the agreed date or trigger. If there is a failure to comply with the planning obligations, appropriate steps will be taken to ensure compliance with the agreement.
To assist developers in meeting validation requirements a draft heads of terms and standard obligations have been made available.