Planning Obligations & Development Agreements.
Our expert team can guide you through planning obligations relating to the affordable housing, highways, utilities, water supply, drainage and more.
Planning obligations can slow down your development.
You can rely on us to move things forward.
We regularly negotiate the provisions of s106 documents with authorities up and down the UK. Great care is needed to understand what elements are negotiable and whether the demands should be accepted.
Bringing a site to the market, to the point of a planning permission being capable of implementation is not just about getting the planning permission, or of resolving a s106 planning obligation. Sometimes there are other kinds of agreement which are necessary.
Planning Obligations: s106 Planning Act:
Commonly known as ‘s106’ agreements or undertakings. These documents are in effect covenants to the council that something will be done, or not done, or that a payment will be made. They are used when the issue cannot simply be resolved by a planning condition. But, essentially, under CIL Regulation 122 (which applies whether or not an area has a CIL schedule in place) a Council has to be able to say that without the s106, permission could not be granted (ie that it is necessary), and that it is directly related to the development, and fairly and reasonable related in scale and kind to the development. As a result care needs to be taken to ensure that the Council is not demanding too much from an owner by way of planning ‘gain’.
Typically an obligation might cover:
Affordable housing; education
Off site highway improvements
Travel plans
Open space arrangements and so forth
However the categories of demand that might be appropriate is not fixed.
It is very important to ensure that an obligation does not offend the CIL Regulation 123: this limits the number of obligations a Council can accept in relation to infrastructure provisions. It will apply differently depending on whether a charging schedule has been introduced.
The obligation has to be given by all those who have a legal interest in the land; this will include people with a charge over the land.
We regularly negotiate the provisions of s106 documents with authorities up and down the Country, and find that great care is needed to understand what elements are negotiable and whether the demands should be accepted.
Highways: s38 and s278 Highways Act:
These agreements are either for the purpose of ensuring that a new road is properly built and is then adopted by a Council (s38); or that alterations to an existing road are carried out to a Council specification (since otherwise no change to a highway is permissible) (s278). The agreement will ensure that the road is designed constructed inspected and maintained until the works are formally adopted or accepted. But it will also govern the potential for defaults in the construction and any bond or indemnity, and care will be needed as to these and as to who is to bear potential Land Compensation Act 1961 claims by third parties.
Gas, Electricity, Water Supply, Drainage:
Each kind of service media has its own statutory provision, and for some there is a requisition process which may be run in parallel with a landowner arrangement. It is particularly important to think about these at an early stage in any development, because service media will often have off-site implications, leading to the potential for unexpected ransom arguments by third parties.
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Adding value to your property assets means successfully negotiating the maze of planning and environmental regulations and liabilities. Our experienced and expert team provide strategic and proactive advice to help you deliver on the legal aspects required.
- Suzanne Tucker
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- In some cases, planning obligations (also referred to as ‘Section 106 Agreements’) will be required by the local planning authority before they will approve a planning application. The obligations might restrict the development or the use of the land in some way, they might require specific works to be carried out as part of your scheme (the provision of affordable housing, open space or play facilities for example), or they might require payment of financial contributions towards the provision of services or facilities by the Local Authority, affordable housing, improvements to schools in the locality for example.
- Where the Local Authority has elected to charge the Community Infrastructure Levy or CIL, those types of infrastructure which are to be funded by CIL should not be included as Planning Obligations
- Planning obligations should only be required where they are necessary to make your scheme acceptable in planning terms, they should only require things which are directly related to your development and fairly and reasonably related in terms of the scale and nature of your development.
- Once entered into the obligations must be complied with by the current and future landowners.
- If the obligations are not complied with the local planning authority can take enforcement steps, which might include taking out an injunction to prevent further development or to require the use to cease, or they could take direct action themselves to remedy the breach and recover their costs from the landowner.
A Development Agreement which relates to the provision of infrastructure within a development, such as highways (known as a ‘Section 38 Agreement’ or ‘Section 278 Agreement’) or drainage (known as a ’Section 104 Agreement’) will set out the standard to which these services must be provided by the developer, and will set out the point at which the highways or drainage will be adopted and maintained by the relevant Local Authority.
