This document summarizes the current context around section 106 (s106) obligations in the UK. It outlines that s106 obligations can restrict development, require certain activities, require land to be used in a specified way, or require payments. S106 agreements must meet legal tests outlined in CIL regulations and policy tests in the NPPF. The document also discusses reforms and changes to s106, including the ability to renegotiate agreements, appeals processes, new guidance from the DCLG and statements from the Minister of State regarding affordable housing and tariff thresholds and vacant buildings.

1. S106 –
Where we are- current context
Gilian Macinnes
Twitter:@gilianPAS
Date: December 2014 www.pas.gov.uk

2. s106 obligations can:
• restrict the development or use of the land in any
specified way
• require specified operations or activities to be
carried out in, on, under or over the land
• require the land to be used in any specified way;
or
• require a sum or sums to be paid to the authority
(or, to the Greater London Authority) on a
specified date or dates or periodically.

3. S106 can:
• be subject to conditions,
• specify restrictions definitely or indefinitely,
• And in terms of payments the timing of these
can be specified in the obligation.
If the s106 is not complied with, it is enforceable
against the person that entered into the obligation
and any subsequent owner.
The s106 can be enforced by injunction.

4. S106 Obligations
• S106 is not replaced by CIL
• Old reality – pre 2008
• New reality-post 2008:
Times have changed – viability
Times have changed - legislation

5. S106 – legal tests- CIL regs
• If the development is capable of being
charged CIL, the S106 obligation must meet
these legal tests:
• NECESSARY to make the development acceptable
in planning terms
• DIRECTLY RELATED to the development
• FAIRLY AND REASONABLY related in kind and
scale to the development

6. S106 Policy tests - NPPF
• 204. Planning obligations should only be
sought where they meet all of the following
tests:
• necessary to make the development
acceptable in planning terms
• directly related to the development; and
• fairly and reasonably related in scale and
kind to the development."

7. Do your s 106 obligations
currently meet these tests?
• Most basic tariffs are already contrary to
the regulations (they do not meet the legal
tests)
• If they don’t meet the regulations you are
in danger of legal challenge to your
decision making.
• Time is running out…. To get a CIL in
place

8. S106 obligations
• Site specific mitigation measures
• For pooled contributions up to April 2015/CIL
adoption, then for up to 5 developments where
infrastructure not funded by CIL

9. Chief planner: councils 'must face
consequences' of lack of CIL progress
• Local planning authorities that fail to
get a Community Infrastructure Levy
(CIL) charging schedule in place by
next spring must 'face the
consequences', the government's chief
planner has said.
• June 2014 -DCLG chief planner Steve Quartermain

10. Delivery and viability of
development
• "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.“
Paragraph 205- NPPF

11. Renegotiation of s106 A
• Amended Regulation (Feb 2013) to set out
a procedure for amending any planning
obligations entered into between 28 March
2008 and before 6 April 2010.Section 106A of the Town and
Country Planning Act 1990
• where the s106 - "no longer serve a useful
purpose" or "continues to serve a useful
purpose equally well“
• Sunset- April 2015

12. Renegotiation of s 106BA
• Changes in the Growth and Infrastructure
Act that require a council to renegotiate
previously agreed affordable housing
levels in a S106, and change the
affordable housing requirement Section 106BA of the
1990 Act
• viability of affordable housing requirements only
• not reopen any other planning policy
considerations or review the merits of the
permitted scheme

13. Appeals
• Under Section 106B of the Town and
Country Planning Act 1990
• Under section 106 BC- Appeal on
affordable housing viability – revised level
of Affordable housing for 3 years

14. DCLG s106BA and BC Guidance
• Overview of what
evidence is required.

15. The Minister of State, Department for
Communities and Local Government
(Brandon Lewis):
• Affordable housing and tariff changes

16. Affordable Housing and tariff-threshold
• 10-units or less, and which have a
maximum combined gross floor space of
1,000 square metres, affordable housing
and tariff style contributions should not be
sought. This will also apply to all
residential annexes and extensions.
• Brandon Lewis, The Minister of State, Department for Communities and Local
Government (28/11/14)

17. Rural designations
• In designated rural areas- authorities may
choose to implement a lower threshold of 5-units
or less, beneath which affordable housing and
tariff style contributions should not be sought.
• If the 5-unit threshold is implemented, payment
between six to ten units should be sought as a
cash payment only and be commuted until after
completion of units within the development.
• Brandon Lewis, The Minister of State, Department for Communities and Local
Government (28/11/14)

18. No change-
• Not applicable to rural exception sites
• Affordable housing and tariff style
contributions should not be sought in
relation to residential annexes and
extensions.
• Brandon Lewis, The Minister of State, Department for Communities and Local
Government (28/11/14)
•

19. Vacant buildings
• “ A financial credit, equivalent to the
existing gross floor space of any vacant
buildings brought back into any lawful use
or demolished for re-development, should
be deducted from the calculation of any
affordable housing contributions sought
from relevant development schemes. “
• Does not apply to vacant buildings which
have been abandoned.
• Brandon Lewis, The Minister of State, Department for Communities and Local
Government (28/11/14)

20. Autumn Budget Statement
1.141…taking steps to speed up section
106 negotiations, including revised
guidance, consulting on a faster process for
reaching agreement, considering how
timescales for agreement could be
introduced, and improving transparency on
the use of section 106 funds; …
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