Legal Agreements (Planning Obligations Section 106)
This page provides guidance on the use of legal agreements and obligations within a planning application.
Planning obligations and legal agreements are used to secure community infrastructure to meet the needs of residents in new developments and/or to mitigate the impact of new developments upon existing community facilities. They can also be used to restrict the development or use of the land in a specified way or require specific operations or activities to be carried out on land.
Section 106 (S106) of the Town and Country Planning Act 1990 allows a Local Planning Authority (LPA) to enter into a legally-binding agreement or planning obligation with a landowner in association with the granting of planning permission. The obligation is termed a "Section 106 Agreement" and "Section 106 Agreements" and "Unilateral Undertakings" are types of planning obligations.
The agreements are a way of delivering or addressing matters that are necessary to make a development acceptable in planning terms. The nature of any contribution or obligation will vary according to the scale and type of development proposed and will therefore need to be assessed at the time the application is made, in consultation with the relevant service providing agencies, and agreed through negotiation with the developer. However, as a general guide, the types of infrastructure or facilities for which the council considers development should be obliged to provide include:
(a) Transport infrastructure or services, including new or improvements to existing footpaths, cycle ways, roads and bus services and their associated infrastructure, to link development to surrounding areas and ensure it is accessible by all modes of travel;
(b) Affordable and special needs housing where there is a proven local need;
(c) Education facilities to meet any expected shortage in school places arising from the development;
(d) Community facilities, including buildings and play or open space, where existing provision is inadequate to provide for the new development;
(e) Environmental improvements where necessary to mitigate the impact of a development or integrate it with surrounding areas;
(f) Training, local employment and other economic development initiatives to improve local access to any employment provided by a new development.
This list is not exhaustive and any other relevant and necessary matter may be included within a planning obligation that cannot be secured through the normal planning process but is required. For example applicants must also provide necessary infrastructure for water supplies and sewage disposal, which is covered by other legislation
Matters agreed as part of a S106 must be:
- necessary to make the development acceptable in planning
- directly related to the development
- fairly and reasonably related in scale and kind to the development.
In order to assist applicants a Supplementary Planning Document (SPD) on S106 Planning Obligations was adopted by the council on 7 February 2012. The SPD expands on policy IM2 (planning obligations) of the Welwyn Hatfield District Plan (adopted 2005), and relates to new development in the borough. The SPD provides detailed guidance on the type and scale of planning obligations sought, in addition to setting out the council's approach to securing planning obligations, with the aim of establishing a transparent, fair and consistent process for negotiating and monitoring planning obligations.
The adopted SPD will be a material planning consideration in the determination of all planning applications within the borough, validated on, or after 8 February 2012 and will be used by the council to negotiate section 106 agreements and unilateral undertakings to secure planning obligations on new developments where required.
In accordance with the adopted SPD, the Council will seek a monitoring fee which will be charged for all obligations, this equates to either 5% of the total value of the contributions or a cap at £5000 as at April 2012. These figures will be amended to take account of changes to the Retail Price Index at the time of negotiation on the obligation. These costs exclude any legal costs incurred by the Council which are paid by the applicant.
Please see the Council's S106 Guidance notes regarding S106 Agreements and Unilateral Undertakings. The Council has also developed a template for specific Unilateral Undertakings WHBC Unilateral Undertakings Template. These are sometimes required when neighbouring home owners wish to apply for permission to extend their respective houses. If your case officer has indicated this is required and you would like a word copy of this template please ask your case officer or contact the Planning Support team on email@example.com.
The following fees apply to any proposal requiring the following changes received on or after 1 July 2013. These are all inclusive of VAT.
|Confirmation of compliance with clauses||£308.57|
|Discharge or modification of obligation to householder||£206.40|
|Discharge or modification of planning obligation (all except householder)||£578.78|
Please complete the following forms to request discharge or modification of planning obligations and send to Planning Services at the address provided on the form or email to firstname.lastname@example.org
- WHBC S106A Application - Guidance Notes
- Apply to Modify or Discharge a Section 106 Planning Obligation
- WHBC S106A Application - Notice and Certificates A, B and C
Welwyn Hatfield District Plan 2005
The relevant adopted district plan policies which require obligations are Policy IM2 (planning obligations), H7 (affordable housing), RA20 (occupancy of agricultural dwellings), EMP10 (childcare provision), CLT 8 (education facilities), M3 (green travel plans), RA25 (public rights of way), RA24 (livery and riding stables), R13 (Sites of Special Scientific Interest), R17 (Woodland, trees and hedgerows) and Policy M4 requires 'Developer Contributions' also referred to as 'Sustainable Transport Contributions' in relation to new transport infrastructure and services.
Further information on the level of Sustainable Transport Contributions that may be necessary can be obtained by contacting Hertfordshire County Council, Transportation Planning and Policy on 01992 556120.
Community Infrastructure Levy (CIL)
The Planning Act 2008, which received Royal Assent in November 2008, contains enabling clauses for a Community Infrastructure Levy (CIL) in England and Wales. The Levy is a charge on development which local planning authorities can choose to set and which is designed to help fund needed infrastructure identified in their plans.
It will be paid primarily by owners or developers of land which is developed.
The Community Infrastructure Levy Regulations 2010 gave local planning authorities the powers to introduce a CIL charging schedule for their areas and at the same time placed the tests for reasonableness for section 106 planning obligations, previously contained in Circular 05/05, onto a statutory footing. The effect of this legislation is that planning obligations under section 106 will remain in use alongside CIL, but for a more restricted set of purposes. From April 2014, or from when an authority introduces a CIL charge, whichever is the sooner, there will be a restriction on the number of financial contributions obtained through planning obligations which can be 'pooled' to fund particular infrastructure.
This Council is working towards the introduction of a CIL charging schedule, further details of the process can be viewed on our Community Infrastructure Levy page. Following successful completion of the process the Council's intention is to adopt CIL in 2021. In the meantime, section 106 planning obligations will continue to be used to fund infrastructure, in accordance with the 2010 CIL Regulations.
The Community Infrastructure Levy (CIL) regulations require all LPA's that issue a CIL Liability Notice or enter into Section 106 Planning Obligations during a reporting year to publish an Infrastructure Funding Statement (IFS) at least annually and by the 31st of December of each year. The IFS here only includes data on s106's as this Council has yet to adopt CIL.