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Section 106 Planning Obligations

Update on the replacement of Section 106 planning obligation infrastructure tariffs with Community Infrastructure Levy

The Council is introducing Community Infrastructure Levy (CIL) in Poole from 2nd January 2013. CIL is a new locally set charge which can be applied to most new development to help fund infrastructure in Poole. CIL finance can be used to fund a wide range of infrastructure that is needed as a result of development. This includes new transport networks, flood defences, schools, hospitals and other health and social care facilities, park improvements, green spaces and leisure centres. CIL rates to be applied to development must be set out in a document called a Charging Schedule.

At the point CIL takes effect (2nd January 2013) it will replace the Council’s planning infrastructure tariffs system set out on this page that currently collects contributions from development towards Transport (as set out in South East Dorset Transport Contributions Scheme 2 SPD), open space (as set out in Planning Obligations: Open Space and Recreation SPG) and Heathland mitigation (as set out in the Dorset Heathland SPD). However, please be aware that:

(i)             Planning applications will be still required to enter into either a bilateral agreement or unilateral undertaking to secure infrastructure tariff based contributions (and follow the Council’s Section 106 planning obligation procedure as set out on this page) where they are granted planning permission before 2nd January 2013;

 

(ii)            Planning applications will therefore then be liable to pay CIL in accordance with the Council’s CIL Charging Schedule, and instead of the current Section 106 planning obligation infrastructure tariff system, where granted planning permission on or after 2nd January 2013.  

Further information on how CIL will be operated in Poole is set out on the Council’s Community Infrastructure Levy webpage that can be accessed here

Introduction

This guide has been produced by the Planning and Regeneration Services to assist its customers in completing Planning Obligations (Section 106 Agreements and Unilateral Undertakings). An important part of this process is the Pre Application Advice Stage (Pre app) which has been included within the section 106 process. Although pre-application advice is not compulsory, it does offer advantages, some of which are detailed below.

Pre Application Advice

     The benefits of Pre-Application Advice include: - 

  • An opportunity to understand how the Borough’s policies will affect the proposed development

  • Identifies requirements for specialist input in relation to listed buildings, conservation areas, trees, landscape, noise, contaminated land, other regulatory requirements and material considerations

  • Provides an opportunity to help ensure a more efficient and effective passage through the development control process

  • Identifies where negotiations are required and how they might be addressed

  • Leads to a reduction in time and money spent on development proposals

  • Provides greater certainty to applicants

  • Guidance notes and a pre-application advice forms are available from the download below.

Pre-app_2nd_Generation_formJan10.doc

Pre-app_2nd_Generation_Guidance_Notes.doc

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Planning Obligations

Planning Obligations can be completed by virtue of the Town and Country Planning Act 1990 (as substituted by the Planning and Compensation Act 1991)

The purpose of a Planning Obligation is 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, for matters that cannot be secured through the normal planning process. They are required in order for a development to be deemed acceptable in planning terms which would otherwise be refused.  Planning Obligations must meet the following requirements set out by SI Number 948/2010: -

  •     Necessary to make the development acceptable in planning terms

  •     Directly related to the development

  •     Fairly and reasonably related in scale and kind to the development

Planning Obligations are obligations relating to a person’s land which bind the land and whoever owns it, to undertake various requirements that are set out within the terms of the agreement.  They are made by deed under Section 106 of the Town & Country Planning Act 1990 (as substituted by the Planning and Compensation Act 1991) and can: -

  •      Restrict the development or use of the land in a specified way

  •      Require specified operations or activities to be carried out on the land

  •      Require the land to be used in any specified way

  •      Require a sum or sums of money to be paid to the authority on a specified date, dates or periodically

Planning Obligations provide a means of ensuring that developers contribute towards the infrastructure and services that the Borough of Poole Council believe to be necessary to facilitate proposed developments, in accordance with local and national planning policy.  Contributions required within Planning Obligations may be made either in cash or in kind and the commonest issues that arise are explained in, and controlled by our Plans and Policies which can be viewed on the Website.

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Types of Contributions

Fastrack/One off Payments

Where payments or the scale of the facilities are modest in relation to the size of the development, the use of one-off payments or provision can make the discharging of obligations more straightforward and help keep administrative costs down.

Unilateral Undertaking

A unilateral undertaking is an obligation offered by the applicant to the planning authority either in support of a planning application or a planning appeal.  The terms of the agreement are identified by the applicant.  This is produced by the applicant’s solicitor in its entirety with no Council involvement.  The planning authority will check the undertaking is needed.  If you would like the Council to check the undertaking is in an acceptable format, this can be arranged although a charge may be payable based upon the level of work involved.

Bilateral Agreement

A bilateral agreement (Section 106 Agreement) is an agreement between the applicant and the Council, and occasionally others. The need for this type of agreement normally comes to light either during the pre-application discussion process or after the application has been submitted.  If the need for such an agreement is identified prior to the submission of the application, applicants are advised to submit either a draft agreement or “heads of terms” with the application to speed up the decision-making process. If an agreement is required, the applicant will be advised of the main requirements and reasons.  When agreement in principle is reached, the application is reported to the Planning Committee, if necessary, for authority to proceed.

Following the approval by the Planning Committee, a letter is sent by the Council’s Legal & Democratic Services Unit to the Applicant/Agent/Solicitor seeking:

An undertaking for payment of the Council’s costs incurred in preparing the legal agreement.

Evidence of ownership of the land (for registered land this is by way of office Copy Entries obtainable from HM Land Registry, for unregistered land this is by way of an epitome of title).

A charge is made because the Council incurs additional costs and this charge reflects the level of work involved, including any aborted work.  This charge is payable immediately prior to completion or upon notification that the agreement is not to be proceeded with.  Once an appropriate undertaking is received, the Council prepares a draft agreement and this is sent to the Applicant / Agent / Solicitor for ratification and final endorsement. Planning Permission is issued on completion of the legal agreement.

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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 even if a prospective purchaser/developer of the land has applied for the planning permission (although it is possible for prospective purchasers to be party to the obligations where they have exchanged contracts to purchase).

Because Planning Obligations run with the land (meaning any outstanding obligations will be transferred with the land), all owners, lessees and mortgagees must be signatories.  Planning Obligations can have significant effects on the use and, therefore, the value of land.  Before anyone enters into a Planning Obligation, we strongly advise they take independent legal advice or contact our Development Management on 01202 633321 for Pre-Application Advice. 

How are Planning Obligations Enforced?

Planning Obligations are enforceable by the Borough of Poole: -

  •    In the courts, by application for an injunction or recovering contributions payable;

  •    By carrying out any operations required by the Planning Obligation and recovering the cost from the person(s) against whom the obligation is enforceable.

How are Planning Obligations recorded?

As a Planning Obligation runs with the land to which it relates, it is registered as a Local Land Charge on the Land Charges Register and will be revealed in any search submitted on behalf of a potential purchaser of an individual plot or entire development site.  It is, therefore, important all obligations are complied with as non compliance may be revealed in a search which is likely to put off potential purchasers.

Level of developer contributions/provision

To calculate the required level of contributions or provision to be included within a Planning Obligation you may wish to use the calculator, which can be found in the download section at the top of this page.  Please note the figures generated by the calculator are only a guide and the case officer will need to verify the necessary contributions associated with your planning application.

Procedure for completing a Planning Obligation

The attached flow chart provides a step by step process on completion and discharge of obligations.  The early submission of a Head of Terms and Planning Obligation can help to prevent delays in the planning application process or possible refusal of planning consent.  You are, therefore strongly, advised to contact our Development Management section on 01202 633321 to obtain pre-application advice (further information available via Planning

 Deed of Variation

 Deeds of Variation requests giving full details should be submitted via planning@poole.govuk stating the Application number and Case Officer. Please note that a  fee of £132 including V.A.T will be levied to administer the request. This fee is in addition to any costs incurred by Legal Services once agreement with the Planning Officer  has been met.

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Contact us

Email
planning@poole.gov.uk

Telephone
01202 633321

Address
Planning and Regeneration Services
Civic Centre
Poole
BH15 2RU