Planning Obligations

Understanding planning obligations

Page last updated at 29 August 2017 at 17:10

The purpose of this information is to help you to understand what is meant by Planning Obligations as well as to explain our 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.

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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 Community Infrastructure Levy 2010 as amended by the Coummunity Infrastructure Levy (Amendment) regulations 2011, 2013, 2014, 2015. 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 known 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 statutory provisions of Regulation 122 of Community Infrastructure Levy 2010 as amended by the Coummunity Infrastructure Levy (Amendment) regulations 2011, 2013, 2014, 2015 and supported paragraph 204 of the National Planning Policy Framework, local planning authorities, in determining planning applications, can only secure planning obligations where it can be demonstrated that such obligations meet the following statutory and policy tests:

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

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 Management 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 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) and associated Background Paper 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.

Please Note: Hampshire County Council's transport contributions are now subject to indexation using the Retail Price Index (RPI) from the base date 1 April 2009. For further details please click here.

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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.

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:

 

Section 106 Agreement

Unilateral Undertaking

Up Front Payment

Has to be completed before 8/13 week deadline.

Yes

Yes

Yes

Secures financial planning obligations

Yes

Yes

Yes

Secures non financial obligations and/or any restrictions, stipulations, covenants that are NOT binding on  Eastleigh Borough Council

Yes

Yes No

Secures non financial planning obligations (i.e. affordable housing) and/or any restrictions, stipulations, covenants that are binding on  Eastleigh Borough Council

Yes

No

No

Defers payment of financial obligations until prior to commencement of development

Yes

Yes

No

Council Solicitors draft the agreement

Yes

No

N/A

Legal Costs

From £1950.00

£375.00

£0.00

 

 

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 CIL Regulations.

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 Management Unit at planning.obligations@eastleigh.gov.uk