Section 106 Agreements

Section 106 Agreements are drawn up when it is considered that a development will hurt the local area that cannot be mitigated through conditions attached to the planning permission. For example, new development can place additional pressure on the social, physical and economic infrastructure which already exists in the surrounding area.

Planning Obligations aim to offset the extra pressure created by new development with improvements to local infrastructure and facilities and ensure that wherever possible a development makes a positive contribution to the local area and community.

S106 Legal Agreements are obligations following Section 106 of the Town and Country Planning Act 1990. They are associated with a particular development and as they are a legal charge on the land, transferring automatically with any change in ownership.

All planning applications are assessed on a case by case basis and not all developments will require obligations. When a planning application is submitted to us, an assessment is made of the likely type and level of mitigation required for a particular development.

Guidance on the type of application that is likely to trigger the need for a certain type of contribution is set out in the "Planning Obligations and Developer Contributions Supplementary Planning Document 2010." A link to this document can be found below.

What can we ask for

The obligations within a Section 106 agreement can include:

  • Affordable housing
  • Primary and secondary education
  • Creation, maintenance and adoption of open space and recreation facilities
  • Provision or adoption of new highways and public rights of way
  • Library books and materials
  • Healthcare facilities
  • Police facilities
  • Community facilities
  • Travel plans
  • Local employment and training strategies

 

Developer contributions

Whilst Section 106 Agreements are unavoidable for larger residential schemes, they are also the preferred option of the Council, however, there may be occasion when a developer chooses to secure contributions through a “Unilateral Undertaking.” This is a simplified version of a Section 106 Agreement which is only entered into by the landowner, making it less complicated to complete.

A draft undertaking is available, along with a guidance document which will help applicants applying for smaller residential schemes to complete it themselves. The aim of the document is to avoid the need to employ legal representations which will:

  • Reduce the time it takes to prepare a deed
  • Reduce the overall time it takes to issue a decision
  • Reduce the associated costs

Please Note:

The draft Unilateral Undertaking can only be used where:

  • The land that makes up the site is already registered with the Land Registry
  • The applicant is the legal owner of the land (not merely a purchaser with a conditional contract or a grant of probate)
  • There are no leases, tenancies or mortgages

For other applications which do not meet the above criteria, the Council will require its Legal Department to deal with the preparation of the Unilateral Undertaking. This is necessary as a result of the need to check ownership of the land and the changes that will have to be made to the document itself. In these circumstances, the applicant must meet the costs of the legal advice of approximately £200. However, this fee may increase and is assessed on an application by application basis. 

It is important to us that that completed Unilateral Undertakings and Section 106 Agreements (where possible) accompany applications when they are originally submitted to the Council. This will speed up the time it takes to process the application and should improve the overall determination period. The Draft Unilateral Undertaking and the associated guidance document can be found in the advice and guidance section below.

Legal information

Section 106 Planning Obligations were established in the Town and Country Planning Act 1990 (as amended). Current Central Government guidance on Section 106 Obligations is in the Community Infrastructure Levy Regulations 2010 and the National Planning Policy Framework in 2018.

These two documents set out the core principles underpinning the planning obligations ideology. To be considered legally sound, obligations must comply fully with all three of the following tests:

  • Necessary to make the development acceptable in planning terms
  • Directly related to the development
  • Fairly and reasonably related in scale and kind to the development

It should be noted that the use of planning obligations is strictly governed by the basic premise that planning permission may not be bought or sold and that any negotiations over planning obligations need to take account of current market conditions and the viability of the scheme as a whole.

We carefully monitor all legal agreements in an open and transparent manner and seek legal advice when necessary, to ensure legal documents are sound. We charge a Legal Fee for the preparation, checking and production of a Section 106 Agreement, Undertakings and a Monitoring Fee for each obligation contained within. These fees are included in the S.106 Agreement or Undertaking which also include the trigger for payment.

Advice and support

We are committed to providing good quality advice to all applicants before they submit a formal application. Applicants are encouraged to submit a pre-application (known as a PREAPP) for complex major applications so that the key principles of the Section 106 requirements/obligations (known as "Head of Terms") can be identified and agreed as early as possible in the application process.

Parish Councils

We encourage Parish Councils to get involved in the allocation of Planning Obligations that have been secured for off-site open space and recreational facilities. Parish Councils may also have the opportunity to consider the adoption of any facilities where they are provided on-site.

Off-site open space contributions

We are committed to ensuring the continued enhancement of public open space and recreational facilities in the District. This will be supported by the use of off-site open space contributions, these are secured when no or insufficient open space is provided on developments of over 10 new dwellings.

The Planning Obligations Open Space Database provides a Parish by Parish breakdown of such open space contributions which have been secured, received and spent and sets out the amount of off-site open space contributions available to each Parish. These contributions can be applied for by completing the Grant Application Form which is available in downloads.

Applications will be assessed by the Planning Obligations Monitoring Group. The quality, underpinning principles and community focus of projects will be considered in a fair and consistent way as possible. Applications will be accepted up until the point at which the contributions have been received and are allocated. If a number of bids for the same contributions have been received, the group will choose the one which offers the most community benefit and value for money following consultation with the Parish Council. The Council also bids for contributions towards open space schemes through the same process.

Downloads
Last updated 30 October 2019
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