Planning Practice Note
Planning obligations under s106
INTRODUCTION
Section 106 of the Town and Country Planning Act 1990 (s106) allows landowners to enter into 'planning obligations' either:
- unilaterally;
- by agreement with the LPA.
Most planning obligations are by agreement and are referred to as Section 106 Agreements. Planning obligations must relate to a specific area of land that is identified on a plan or map attaching to the obligation. They are usually (but not always) used to make sure that a planning permission is carried out satisfactorily.
Section 52 Agreements
Some agreements date from before 1990 when they were known as Section 52 Agreements. The provisions of Section 52 were similar but not identical to Section 106.
Section 278 Agreements
Highway Authorities have similar powers (under Section 278 of the Highways Act 1980) to enter into agreements with developers over the construction of roads which are to be adopted as highways.
Please note that this Practice note is issued as information only and is not a statement of the law.
WHAT MAY A PLANNING OBLIGATION CONSIST OF?
They may cover one or more of the following:
- restricting the use of the land or the way in which a development is to be carried out;
- requiring specific operations or activities to be carried out;
- requiring the land to be used in a specific way;
- requiring a sum or sums of money to be paid to the LPA for specified purposes.
Planning obligations may be used for a wide range of purposes. However, Government policy gives a clear set of rules which planning obligations must adhere to. They must:
- be necessary; this is generally taken to mean that without the planning obligation there would be sufficient reason to refuse planning permission for the development;
- be relevant to planning and to the development and/or use of the land to which they relate;
- relate directly to the proposed development and not to other planning-related issues in the area;
- be fairly and reasonably related in scale and kind to the proposed development;
- be reasonable in all other respects.
WHO MAY ENTER INTO A PLANNING OBLIGATION?
Planning obligations are legally enforceable against the owner(s) (including their successors in title) of the land to which they relate. This means that generally only owners can enter into obligations (although it is possible for prospective purchasers to do so through a conditional agreement).
Because planning obligations run with the land, all owners, part or joint owners, owners, lessees and mortgagees must be signatories. Planning obligations can have significant effects on the use (and, therefore, value) of land. Before anyone enters into a planning obligation they are strongly advised to take independent legal advice.
WHAT DOES A PLANNING OBLIGATION CONSIST OF?
A planning obligation must be executed as a deed. When it is by agreement, it will also be signed and sealed by the LPA. It will contain covenants covering the things the landowner:
- agrees to do;
- agrees not to do;
and the circumstances and timescales within which these things will occur. It also contains a map or plan showing the land to which it relates.
HOW ARE PLANNING OBLIGATIONS ENFORCED?
Planning obligations are enforceable by the LPA:
- in the courts by application for an injunction;
- by carrying out any operations required by the planning obligation and recovering the cost from the person(s) against whom the obligation is enforceable.
Land charges
Planning obligations are registered as local land charges. If land is subject to a planning obligation which has not been (or is not being) complied with, the owner(s) may find:
- the land is difficult to dispose of;
- its value is diminished.
CAN PLANNING OBLIGATIONS BE LIFTED?
A planning obligation may be modified or discharged:
- at any time by agreement with the LPA;
- on application to the LPA after 5 years or a later date specified in the obligation (this does not apply to s52 Agreements).
Applications
Applications for modifying of lifting planning obligations can be determined by the LPA in one of three ways:
- if the obligation no longer serves a useful purpose, it may be discharged;
- if it still serves a useful purpose, it shall continue in force;
- if it would still serve a useful purpose equally well subject to proposed modifications, it may continue in force so modified.
Appeals
There is a right of appeal against decisions of the LPA under the previous paragraph. However, it is the stated policy of the Secretary of State not to lift planning obligations that still serve their originally intended purpose.
THE USE OF PLANNING OBLIGATIONS IN SOUTH SHROPSHIRE
In South Shropshire, planning obligations (usually as Section 106 Agreements) are used for a wide variety of purposes including:
- ensuring agricultural dwellings are not sold separately from the land they serve;
- ensuring residential annexes do not become separate independent dwellings;
- requiring housing to be used as 'affordable housing';
- requiring infrastructure (roads, drains etc.) to be provided;
- requiring land to be dedicated and equipped as open space or playgrounds;
- requiring sums to be paid for the provision of off-site infrastructure or the long-term maintenance of open space.
PROCEDURE IN SOUTH SHROPSHIRE
If the LPA requires a planning permission to be the subject of a Section 106 Agreement, the applicant or agent will be informed as soon as possible, following which procedure will be as follows:
- the LPA will write to the applicant or agent asking for the name of the solicitor who will act for the applicant;
- the LPA's solicitor will then write to the applicant's solicitor:
- enclosing a draft of the Section 106 Agreement and plan with a draft copy of the proposed planning permission;
- asking for title to the land to be deduced (shown that the applicant(s) own it);
- requiring agreement that the applicant will pay the LPA's legal costs arising from the Agreement and making a deposit of £360 against these;
- the applicant's solicitor may suggest changes to the wording of the draft Agreement but the LPA will not accept amendments to wording which may undermine the intended purpose or integrity of the obligation;
- when the content of the Agreement has been agreed, it will be signed and sealed by the applicant and then by the LPA;
- the completed Agreement and the planning permission will be issued by the LPA.
Planning permission will not be granted until this process is completed and the development should not be started until this has happened.
With the applicant's written agreement in advance, the LPA may issue planning permission subject to a condition which requires the Section 106 Agreement to be completed before the development starts. This has the advantage for the applicant of an early permission, but the development cannot be started until the Agreement is completed. The procedure is the same as that outline above.
UNILATERAL UNDERTAKINGS
Anyone considering entering into a planning obligation unilaterally is advised to discuss the detail with the LPA in advance. The LPA will not be able to take into account planning obligations which are in any way defective.
CONTACTS
For further information, please contact Planning Support
© Copyright South Shropshire District Council,
Stone House, Corve Street,
Ludlow, Shropshire, SY8 1DG.
Tel: (01584) 813000
Fax: (01584) 813128
e-mail: planning@southshropshire.gov.uk
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Subscribe to changes to this page here.Author: Planning and Building Control. Last Updated: 13/2/2007.
