Page last updated at 14:01 GMT, Friday, December 30 2011

Planning Obligations

The purpose of this information is to help you to understand what is meant by Planning Obligations as well as to explain Eastleigh Borough Council's approach to them. It will also provide you with some useful guidance if you are asked to enter into them as part of a development, as well as demonstrating the local facilities that have been delivered or improved as a result of Planning Obligations.

• What are Planning Obligations?
• Is my application liable for Planning Obligations?
• How do Eastleigh Borough Council approach Planning Obligations and what are the levels and types of contributions required?
• How are Planning Obligations secured and what are the options available to developers required to enter into them?
• How are Planning Obligations monitored?

What are Planning Obligations?

New development often creates a need for additional infrastructure or improved community services and facilities, without which there could be a detrimental effect on local amenity and the quality of the environment; Planning Obligations are a means of securing these measures.

A Planning Obligation will usually take the form of a legal agreement secured pursuant to Section 106 of the Town and Country Planning Act 1990 (as amended) and the Planning and Compulsory Purchase Act 2004.  In the case of Section 106 Agreements, these are negotiated between the local planning authority and the applicant or developer as well as any other parties that may have an interest in the land. It is also possible for Planning Obligations to be entered into unilaterally by the persons with an interest in the land, this is know as a Unilateral Undertaking.

Is my application liable for Planning Obligations?

There are no hard and fast rules about the size and type of development that should attract planning obligations, however, under the provisions of the Planning and Compulsory Purchase Act 2004, outlined in more detail in Circular 05/2005, local planning authorities, in determining planning applications, can only secure planning obligations where it can be demonstrated that such obligations are:

• Necessary (to make a proposal acceptable in planning terms);
• Relevant to planning;
• Directly related to the proposed development;
• Fairly and reasonably related in scale and kind to the proposed development; and,
• Reasonable in all other aspects.

If you are unsure as to whether a proposed development you may be considering is likely to require planning obligations you are advised to seek pre-application advice from the Development Control Unit before purchasing land for property or development.

How do Eastleigh Borough Council approach Planning Obligations and what are the levels and types of contributions required?

The Eastleigh Borough Local Plan Review 2001-2011 sets out the role of planning obligations and developers' contributions in providing resources to achieve the objectives of the Local Plan and to meet, as far as possible, the infrastructure costs arising from development. It is desirable that the provision of facilities keeps pace with policy as well as needs within the local community. This approach is supported by both Government guidance in Circular 05/2005 and best practice guidance from the Department for Communities and Local Government and the Audit Commission.

Eastleigh Borough Council, on the 10 July 2008, also adopted a Supplementary Planning Document (SPD) on Planning Obligations which seeks to provide additional guidance on the legal and policy basis for the negotiating of planning obligations, increase developers' awareness of planning obligations and contributions, as well as to provide transparency to the process of negotiations.

In order to provide a predictable and transparent system for applying financial planning obligations Eastleigh Borough Council operates a Planning Obligations Tariff System for the most common planning obligations. This system aims to allow developers to pre-determine the level of contributions sought from any development by making indicative figures public. This is not, however, meant to detract from developers seeking pre-application advice.

The tariff is based on values at the time of the production of the SPD, therefore to ensure that contributions maintain their spending capacity all contributions are subject to indexation to the Retail Price Index (excluding mortgages) (RPIx) or any such other index maintained by HM Government deemed appropriate by the Council. Indexation is applied to the principal sum from the base date to the date of payment.

How are Planning Obligations secured and what are the options available to developers required to enter into them?

You will be notified within 5 working days of validation if your application is initially anticipated to require planning obligations. The first letter will notify you of any associated timescales in which the planning obligations are to be secured, however, it will not at this stage of the application confirm the specific details of which planning obligations are required or the levels of contribution. Your first notification letter will be accompanied by a planning obligations leaflet that will give you a brief introduction of your options for securing planning obligations.

Shortly after the statutory consultation period has expired (21 days after validation) you will be notified in a second letter of the specific planning obligations being applied to your application. We then require written confirmation within 7 days of this letter as to how you intend to secure the required planning obligations.

In order to determine applications within the Government's prescribed periods, the securing of planning obligations and developer contributions cannot be a cause of delay. Developers are required to ensure that any obligations or contributions applied by the Council are resolved within the statutory time period advised by the Council, usually 8 or 13 weeks from the date the application is made valid. Failure to do so may result in the application being refused for which the lack of provision will form part of the refusal.

Three options for securing planning obligations:

There are three methods of securing planning obligations. Guidance notes for each of these methods are available using the links below the following table.  This table summarises these methods and highlights the main differences between them:

• Guidance Notes for Completing a Section 106 Agreement
• Guidance Notes for Completing a Unilateral Undertaking (Including an Agreement Template)
• Guidance Notes for Making an Up Front Payment of Developer Contributions in Lieu of a Section 106 Agreement                

How are Planning Obligations Monitored?

The Council employs dedicated staff who not only assist with the negotiating of planning obligations but also monitor agreements to ensure compliance by all parties with any obligations, covenants, restrictions, and stipulations contained within any agreement.

Planning Obligations secured by way of a Section 106 agreement or Unilateral Undertaking are binding on the land and are therefore enforceable against all successors in title. The land charge will remain active until all of the planning obligations have been satisfied or the planning permission for which the Section 106 agreement or Unilateral Undertaking relates to has expired.

Financial Planning Obligations are often received on an 'unallocated' basis, therefore, the Council will invest these monies in local schemes either identified by the Local Area Coordination Team, with the Local Plan or the Council's Community Investment Partnership strategy.

All financial contributions are monitored closely to ensure their spending is wholly in accordance with the terms set out within the agreement and that allocations of contributions are appropriate and in accordance with the tests set out in Circular 05/2005.

Through these monitoring processes the Council is confident that it can provide a full and comprehensive audit trail of any allocation and spending of planning obligations' monies should any developer require it.

Should you require any further information with regards to Planning Obligations please contact the Development Control Unit at planning@eastleigh.gov.uk