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 merely a generic term to describe the community benefits achieved through this process.
What are Planning Obligations?
Planning obligations are legal agreements entered into between the local planning authority and the applicant or developer and any others who have an interest in the land; they are the mechanism used to ensure that matters required to make a development acceptable are secured. Only a small number of planning applications require planning obligations for planning permission to be granted. Once completed, obligations are registered as Local Land Charges and are typically enforceable against the people who have entered into the obligation as well as any subsequent owner of the site.
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
What can an Obligation be used for?
Any planning obligations sought by the Council must comply with the 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.
Types of Contributions
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
- Sustainable transport
- Waste and recycling
- Rights of way
- 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.
Monitoring of Obligations
For details of those agreements, completed by Wealden District Council, which provide financial obligations please email email@example.com. Please be aware that many agreements are entered into, but substantive contributions are not triggered until there is commencement of development.