Planning Obligations / Legal Agreements

Planning Obligations, Legal Agreements or Section 106 agreements 

A planning obligation is a legal agreement between the planning authority and the applicant/developer and any others that may have an interest in the land. An obligation either requires the developer to do something or restricts what can be done with land following the granting of planning permission.

For small scale proposals, the self service option may be the most effective route to create a legal agreement without the additional costs of a bespoke agreement.  The self service agreement would only apply to developments of 1 dwelling to 9 dwellings or commercial developments in B use classes (B1, B2, B8) of 100 sq metres to 999 sq metres, a draft agreement can be formed by following the self service Section 106 agreement option. The self service agreement is not suitable for unregistered land, or land held in trust or for developments which require an affordable housing contribution.

Background

The agreements are made under Section 106 of the Town and Country Planning Act 1990 (as amended), and enable development proposals to meet the needs of the community by securing contributions towards community infrastructure. Agreements are normally required under Policies C1 and C2 of the Basingstoke and Deane Borough Adopted Local Plan 1996-2011 (adopted July 2006).

The Borough Council has considered the cumulative impact of all new residential and non residential development on community resources in the Borough:

• Planning applications submitted that seek a net increase of one dwelling or more (to include the conversion of an existing dwelling to flat(s)) will be required to enter into a Section 106 agreement to contribute to community improvements (defined as open space, kick-about, play and community facilities) as well as transport improvements.
• Commercial developments of 100 sq metres of floorspace or more will be required to contribute to transport improvements. Other non residential developments may also require a contribution to transport improvements.

Following a recent review of the cost of implementing Section 106 agreements an administration and monitoring charge will also be required for all Section 106 agreements.

Borough Guidance on planning obligations is provided through the Section 106 - Planning Obligations and Community Infrastructure guidance document and its associated appendices - which provides information on the legal and policy basis for negotiating planning obligations.

The main areas for which contributions are normally sought are:

· Play Areas/Recreation – on/off-site

· Playing Fields – on/off site

· Community Facilities – on/off-site

· Percent for Art

· Transport (BEST) contributions

· Affordable Housing

· Children’s Services Facilities.

• the developer will pay a financial contribution towards community facilities - such as open space, play areas or for the provision of on-site community facilities.
• the local authority will restrict the development of an area of land, or permit only specified operations to be carried out on it, such as the protection of parks and open spaces.
• the developer will transfer ownership of an area of open space to the Council with a suitable fee to cover its future maintenance (commuted sum).
• the developer will plant a specified number of trees and maintain them for a number of years.
• the developer will provide Affordable Housing within the development.
• the developer will pay towards the enhancement of our transport infrastructure - Basingstoke Environment Strategy for Transport.
• the developer will contribute towards the provision of public art.

National Guidance is given in a planning circular 05/2005 'Planning Obligations’.

Procedural Options.

For developments of 1 dwelling to 9 dwellings or commercial developments in B use classes (B1, B2, B8) of 100 sq metres to 999 sq metres, a draft agreement can be formed by following the self service Section 106 agreement option. The self service agreement is not suitable for unregistered land, or land held in trust or for developments which require an affordable housing contribution. 

For developments of 10 or more dwellings/ larger commercial proposals, or for all other non residential developments, it is advisable to formally submit information to the Council in order for the development to be scoped for contributions. The Council offers a pre-application service where your proposals can be scoped for any contributions arising from your proposed development. This will identify the likely level of contributions that your proposal will need to make and will identify the terms of reference for any subsequent agreement.

For further information concerning Section 106 agreements please contact John Guppy, Implementation Team Leader on 01256 845462 or john.guppy@basingstoke.gov.uk

Further, Best Practice Notes on Affordable Housing and Community Infrastructure, dated summer 2006, provides procedural information and model Section 106 agreements.