This document provides context and guidance around developer contributions in the UK, specifically regarding Section 106 (s106) obligations. It discusses that s106 obligations must meet legal tests of being necessary, directly related to, and fairly and reasonably scaled to the proposed development. It also notes policies in the National Planning Policy Framework regarding viability and flexibility. The document gives overview of procedures for renegotiating or appealing existing s106 agreements and exceptions. It briefly mentions the Community Infrastructure Levy and highway agreements under section 278 as other relevant mechanisms.
Your approach to the on-going use of S106 and S278 impacts on: Viability evidence, Infrastructure evidence and the Regulation 123 list - so it's very important!
What you need to know: Implementation is technically more complicated than developing a charging schedule; the 2014 regulations have introduced some useful amendments;
a number of policies are discretionary and require a decision to ‘turn on’ and there is little in the regulations regarding how to spend CIL.
Your approach to the on-going use of S106 and S278 impacts on: Viability evidence, Infrastructure evidence and the Regulation 123 list - so it's very important!
What you need to know: Implementation is technically more complicated than developing a charging schedule; the 2014 regulations have introduced some useful amendments;
a number of policies are discretionary and require a decision to ‘turn on’ and there is little in the regulations regarding how to spend CIL.
Developer Payments- Community Infrastructure Levy, S106 agreements and Viabil...PAS_Team
With less than a year until local authorities will be unable to pool (five or more) s106 obligations for a single project or scheme there is an immediacy for many to get a CIL in place. This presentation will help you to understand the relevance of viability and it will help you to understand the role for the Community Infrastructure Levy and other developer payments.
Developer Payments Community Infrastructure Levy & ViabilityPAS_Team
These seminars are particularly designed for councillors (in England) but officers who wish an overview of developer payments in light of a significant legislation and guidance changes over the last few years should find it beneficial. - See more at: http://www.pas.gov.uk/events/-/journal_content/56/332612/6555744/ARTICLE#sthash.NIWWOLkl.dpuf
West Midlands planning and development club - November 2017, BirminghamBrowne Jacobson LLP
This session provided an introduction to SPVs, looked at key tax considerations when purchasing property, overage and restrictive convenants, and a planning update.
In our first planning club of 2017 we covered:
• formation and use of Section 106 obligations and conditions
• a look at recent changes to permitted development rights
• challenges to planning decisions, including judicial review and appeals.
The Planning Law Update seminar focusses on the Growth and Infrastructure Bill with Royal Assent now expected shortly. It also looks at judicial review of planning decisions. Is Government right to be concerned that third party challenge could be holding back development?
During the final planning club of 2015, we covered the following topics:
• planning enforcement - a look at key planning enforcement difficulties and how to overcome them
• The Planning and Housing Bill - considering the effect of this Bill and the government’s ‘crusade to get 1 million homes built by 2020’ from a planning perspective, with a particular focus on starter homes and the effect of these for local authorities.
https://www.brownejacobson.com/sectors-and-services/sectors/public-sector
At this Public Sector Planning Club we reviewed:
- Recent developments in planning law, including cases and guidance
- Consideration of the use of planning conditions, including the appropriate use of pre-commencement conditions
- The powers available for stopping up and diverting highways, when these may be used, and points to consider
Our November planning and development club covered the following topics;
• selling developments to investors; points to note - Kassra Powles
• working with the public sector - Alex Kynoch
• planning update - Dmitrije Sirovica
For further advice and training visit our webpage - https://www.brownejacobson.com/
Public sector planning club - June 2017, NottinghamKatie Wigley
This seminar covered enforcement of section 106 agreements, highways issues in planning, and the interpretation of paragraph 49 of the National Planning Policy Framework.
So you want to apply for the Planning Skills Delivery Fund PAS Events August ...PAS_Team
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The Planning Skills Delivery Fund (PSDF) will provide £24 million over two years to local authorities to help with clearing backlogs of planning applications and prepare for the implementation of proposed planning reform. It's part of a wider programme of work designed to address the capability and capacity of planning services. Local planning authorities can apply for funding for up to £100,000, which can be used to hire additional planning officers and other specialist resources.
Planning Advisory Service recently held two events to help councils think about whether to apply and if they needed to find time over the Summer to make an application. Here is the presentation with all you need to know about the fund.
Presentation from Dan Knowles, Planning Policy Officer at Guildford Borough Council on their approach to adopted 20% biodiversity net gain in their Local Plan
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Infrastructure Levy Technical Consultation (Workshop 2 Spending the levy and delivering infrastructure) - A copy of the presentation given by DLUHC at a PAS workshop
PAS Natural England Biodiversity Net Gain update 18_04_23PAS_Team
Nick White, Principal Adviser - Net Gain from Natural England provided an update on the latest on Biodiversity Net Gain to an audience of over 500 on 18 April 2023.
Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos
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Jennifer Schaus and Associates hosts a complimentary webinar series on The FAR in 2024. Join the webinars on Wednesdays and Fridays at noon, eastern.
Recordings are on YouTube and the company website.
https://www.youtube.com/@jenniferschaus/videos
1. S106 Intro and Context
Gilian Macinnes
25th February 2016-
London www.pas.gov.uk
2. Developer contributions - context
• One of the Government’s pre-election
manifesto commitments
“when new homes are granted planning
permission, we will make sure local communities
know up-front that necessary infrastructure such
as schools and roads will be provided”.
4. 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.
5. 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.
6. S106 Obligations
• Reality-post 2008:
Times have changed – viability
Times have changed - legislation
• Ongoing changes since 2008
7. 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
8. 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."
9. Do your s 106 obligations currently
meet these tests?
• Tariffs are already contrary to the regulations
(they do not meet the legal tests)- some still
using them?
• If the s106 does not meet the regulations you
are in danger of legal challenge to your
decision making.
10. S106 obligations
• Site specific mitigation measures
• Pooling issues –A planning obligation may not
constitute a reason for granting planning permission..
- 5 or more separate planning obligations
- within the area of the charging authority
- for project or type of infrastructure
11. S106 and policy making
• Policies for seeking planning obligations should be
set out in a
• local plan,
• neighbourhood plan
• The London Plan
• to enable fair and open testing of the policy at
examination.
12. Supplementary planning
documents
• ‘Supplementary planning documents should
not be used to add unnecessarily to the
financial burdens on development and should
not be used to set rates or charges which
have not been established through
development plan policy.’
• So should you have supplementary planning
documents?
13. 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
14. 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- so back to 5 years
15. 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
16. 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
17. DCLG s106BA and BC Guidance
• Overview of what
evidence is required.
18. S106 exceptions
• Ministerial statement - Starter Homes –
exception sites should not be required to make
affordable housing or tariff style contributions.
• Ministerial statement – Vacant Building Credit
and Affordable Homes Threshold – Reading &
West Berks case – 15-17th March 2016