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Planning Obligations (section 106 agreements)

A developer and a local planning authority may enter into an agreement containing obligations on the developer or both parties that support the grant of planning permission or listed building consent. Sometimes a developer may offer to do something in return for a permission or consent without the request or agreement of the local authority and these are called 'unilateral undertakings'. All these planning obligations are commonly called s106 agreements, after the provision that enables them (1).

s106 agreements can (1):

1. restrict development or the use of land

2. require specific operations on site

3. require land to be used in a specific way

4. require money to be paid to the local authority.

They can run for an unlimited amount of time, but the land owner bound by the obligation can apply to have it removed if it no longer serves a useful purpose once five years have passed (2).

Once created they are a legal charge on the land, should be registered on the Local Land Charges Register and will bind successor purchasers of the land affected.

Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition (3).

Planning obligations should only be sought where they meet all of the following tests:

1. necessary to make the development acceptable in planning terms;

2. directly related to the development; and

3. fairly and reasonably related in scale and kind to the development (4).

Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled (5).

Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects (6).

Whether an obligation on the part of the developer to do something should be best secured by way of a condition or planning obligation depends on the means of enforcement, which is different for each.

Conditions are negative in nature. Positive obligations can be secured by negative conditions, such as a condition requiring that the repair or recording of a heritage asset be complete before the premises are beneficially occupied. But if there is no opportunity to create a condition that would be effective in enforcing an obligation, for example, because the positive obligation may come after the works are complete and the benefit taken by the developer, then a planning obligation, enforceable by injunction if necessary, may be appropriate.

References

(1)s106 Town and Country Planning Act 1990

(2)s106A Town and Country Planning Act 1990

(3) Paragraph 203, National Planning Policy Framework, Department for Communities and Local Government, 2012

(4) Paragraph 204, National Planning Policy Framework, Department for Communities and Local Government, 2012

(5) Paragraph 205, National Planning Policy Framework, Department for Communities and Local Government, 2012

(6) Paragraph 206, National Planning Policy Framework, Department for Communities and Local Government, 2012  

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