Legal Agreements

Background

New development may place additional pressure on existing social, physical and economic infrastructure in the surrounding area and can create a requirement for additional infrastructure and/or improved community facilities and services. Without such infrastructure provision there could be a detrimental impact upon local amenities and the quality of the environment. Planning obligations are used, where supported by the District Council’s and the County Council’s established policies, to ensure that new development makes a positive contribution to the local area. This takes place by balancing the additional pressure created from development and overcoming difficulties which would otherwise result in planning permission being refused, with improvements to the surrounding area in order to meet the needs of Wealden. The terms ‘planning agreement’, ‘planning obligation’, ‘unilateral obligation’ and ‘planning gain’ are often used interchangeably. However, technically, a planning agreement, also known as a Section 106 Agreement (a reference to the relevant section of the Town and Country Planning Act 1990), is the overarching legal agreement which results from the planning obligations process. Planning gain is a generic term to describe the community benefits achieved through this process.

A planning obligation is a legally binding document which enables a local planning authority to secure matters such as the provision of infrastructure or services, or contributions towards them, to support development. Planning obligations are used as a mechanism to make an otherwise unacceptable development acceptable, and are only used where it is not possible to address an unacceptable impact through planning conditions.

The District Council usually requires all parties with an interest in the land forming the application site to enter planning obligations. For example, if the land to which the proposal relates is mortgaged or charged to third parties or if a developer has an option agreement, it will be necessary for such interests to be party to any planning obligation. Applicants should liaise as early as possible with interested parties about their proposals to avoid delays.  Once completed, planning obligations are registered as Local Land Charges and are typically enforceable against the parties who have entered into the planning obligation as well as any subsequent successors in title.

Planning obligations can take the form of either bi-lateral agreements or unilateral undertakings, both of which are entered into under Section 106 of the Town and Country Planning Act 1990. The latter is often used by an applicant in support of an appeal.

Planning obligations can be used for a variety of reasons, including:

  • to require money to be paid to the Local Planning Authority, County Council or Parish Council
  • to restrict the development or use of land
  • to require specified operations or actions to be carried out in relation to the land
  • to require land to be used in a specified way
  • to prevent the non-severance of land (e.g. to ensure a self contained residential annex is not sold as a separate unit)
  • to transfer affordable housing or amenity land to another organisation
  • to require that other legal agreements, such as highways agreements, are entered into.

Any planning obligations sought by the Council must comply with the following statutory tests set out in the Community Infrastructure Levy Regulations 2010 (as amended) and in Government guidance on planning obligations (at Paragraph 203 – 205 of the NPPF). This means that an obligation must be:

  • Necessary to make development acceptable in planning terms
  • Directly related to development; and
  • Fairly and reasonably related in scale and kind to the development

Planning obligations are governed by the fundamental principle that planning permission may not be bought or sold. Therefore unacceptable development cannot be permitted because of benefits or inducements offered by a developer which are not necessary to make the development acceptable in planning terms. Planning obligations should not be used to make up for existing deficiencies in infrastructure though they can be used to contribute towards resolving an existing problem if the proposed development would intensify the problem.

A wide variety of benefits can be sought through the system of planning obligations. Below is a non-exhaustive list of such contributions:

  • Affordable Housing
  • Public Open Space – both provision and future maintenance
  • Education
  • Highways
  • Sustainable transport
  • Libraries
  • Waste and recycling
  • Rights of way
  • Health
  • Public Art
  • Measures to mitigate the impact of development – landscaping works

Wealden District Council often collect contributions on behalf of East Sussex County Council for expenditure by the County Council. Each application is dealt with individually upon its own merits and restrictions; therefore requirements other than those listed above may also be necessary.

Compliance with planning obligations will be monitored. In the event the developer fails to comply with any terms regarding financial payments, a penalty rate of interest – above and beyond indexation – will be incurred until the point the payment is received in full. This will be incorporated into the planning obligation.

In the event of non-compliance with a planning obligation the District Council has powers to instigate legal and planning enforcement action. This could include injunctions to prevent development proceeding further or entering land to carry out required works and recover costs arising from such action.

We are currently working on updating monitoring information for Planning Obligations which will soon be made available on these pages.

In the meantime, for details of those Obligations completed by Wealden District Council, which provide financial obligations please email planning@wealden.gov.uk .

It should be noted that the District Council will normally require the payment of financial contributions prior to implementation of a development. For phased developments, the staging of payments may be acceptable and the developer will be expected to notify the District Council when relevant and agreed triggers have been reached. All information regarding the triggers for payment and associated matters will be set out in the relevant planning obligation.

We have produced template documents for guidance purposes and to provide an indication of the likely format of the legal documents, but the final drafting will be carried out by or on behalf of our Legal Services team.

These are legal documents and you may want to take independent legal advice. The Council’s Legal Services team cannot provide you with legal advice. Please note that legal costs will be levied.

Further drafts will be added in due course, but the deed securing SANGs/SAMMs is available. More information on SANGs/SAMMs is available elsewhere on our planning advice pages.

Template for SAMMS and SANGS Planning Obligation