Planning Obligations - A Guide to Section 106 and Developer Contributions 2014 (SPD2)

1. Introduction

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The Status of this Guide

1.1 This guide is a Supplementary Planning Document (SPD) and is part of the Southend on Sea Local Development Framework (LDF) (also known as the Development Plan or Local Plan). The LDF is a set of development plan documents (DPDs) and supplementary planning documents (SPDs) that together form the planning policy framework for the town. Supplementary Planning Documents, which are subject to a public consultation process, provide guidance and further clarification of planning policy that is included in DPDs, which go through a formal statutory examination in public conducted by an independent planning inspector prior to adoption.

The Statutory Basis of Section 106 Agreements

1.2 Planning obligations are private agreements negotiated, usually in the context of planning applications, between local planning authorities and those with an interest in a piece of land (or "developers"). Planning obligations can be secured through a bilateral Section 106 (S106) Agreement or Section 106 Unilateral Undertaking from a developer.

1.3 The statutory basis allowing anyone interested in land in the area of a local planning authority to enter into planning obligations is Section 106 of The Town and Country Planning Act (TCPA) 1990 (as amended by Section 12 of the Planning and Compensation Act 1991). Further legislation is set out in Regulations 122 and 123 of the Community Infrastructure (CIL) Regulations 2010 (as amended).

1.4 In dealing with planning applications, local planning authorities consider each on its merits and reach a decision based on whether the application accords with the relevant development plan, unless material considerations indicate otherwise. Where applications do not meet these requirements, they may be refused. However, in some instances, it may be possible to make acceptable development proposals which might otherwise be unacceptable in planning terms, through the use of planning conditions (see NPPF paragraph 176 and 203) or, where this is not possible, through planning obligations.

1.5 Section 106 (1) of the TCPA allows a planning obligation to:

1. restrict development or use of the land in any specified way;
2. require specified operations or activities to be carried out in, on, under or over the land;
3. require the land to be used in any specified way; or require a sum or sums to be paid to the authority on a specified date or dates or periodically.

1.6 The CIL Regulations 2010 came into force on 6 April 2010. Part 11 Section 122 (2) of the Regulations set out the statutory tests for planning obligations, namely that they should only be sought where they are:

• 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.

1.7 For example, planning obligations might be used to prescribe the nature of a development (e.g. by requiring that a given proportion of housing is affordable); or to secure a contribution from a developer to compensate for loss or damage created by a development (e.g. loss of open space); or to mitigate a development's impact (e.g. to pay for or implement changes to the highway required to address traffic/access issues arising from the development).

1.8 This SPD adheres to a fundamental principle that planning permission may not be bought or sold and that planning obligations must only be sought to make acceptable development which would otherwise be unacceptable in planning terms. The outcome of the use of planning obligations as set out in the statutory tests should be that the proposed development concerned is made to accord with published local and national planning policies. Planning obligations affect all those with an interest in the land being developed and will continue to affect subsequent owners of the property if the obligations are still capable of being complied with or carried out.

Policy Framework

National Planning Policy Framework

1.9 The National Planning Policy Framework (NPPF), published 27 March 2012, sets out the government’s planning policies in England and how these are expected to be applied. Paragraphs 203 to 205 of the NPPF relate to planning obligations. The NPPF is supported by on-line National Planning Practice Guidance (NPPG) launched in 2013, which also includes guidance on planning obligations.

1.10 Paragraph 203 of the NPPF requires local authorities to “consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations”. Paragraph 204 reiterates the statutory tests for planning obligations, as set out in the CIL Regulations, setting them out as policy tests. Paragraph 205 states the following:

“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 planning development being stalled.”

1.11 The NPPF clearly states in paragraph 14 that there should be a presumption in favour of sustainable development and, as such, the principal objective of the planning system is to deliver sustainable development. So as not to prevent sustainable development, policies for seeking obligations must be grounded in an understanding of development viability. Local authorities must be willing to negotiate on planning obligations based on scheme viability evidence and specific site circumstances. Further details in respect of viability and deliverability can be found in paragraph 173 of the NPPF.

1.12 The Community Infrastructure Levy (CIL) came into force in April 2010. It allows local authorities in England and Wales to raise funds from developers undertaking new building projects in their areas to ensure that the costs incurred in providing infrastructure to support development and growth of an area can be funded by owners or developers of land.

1.13 The introduction of the CIL Regulations means that upon adoption of a local CIL, or by April 2015, whichever is sooner, planning obligations are to be scaled back to cover provision of affordable housing and site specific measures to mitigate the impact of development only. This means that local authorities will no longer be able to pool financial S106 contributions to fund infrastructure from more than five developments. The Council intends to implement a CIL for Southend on Sea concurrently with the adoption of this revised SPD. Obligations contained in the Council’s previous Planning Obligations SPD (SPD2, adopted in November 2010) that involved pooling of funds, such as education, cycle routes and public transport, will cease on adoption of a CIL Charging Schedule, as these matters will be covered by CIL.

1.14 In accordance with the NPPF and NPPG, Southend Borough Council’s development plan documents, including this SPD, set out the Council’s policy and approach in seeking planning obligations. It is likely that this SPD will need to be adapted as other Local Development Documents emerge to reflect any new national and local policies relating to planning obligations.

Local Policy Framework

1.15 All Council activities are guided by, and should be consistent with, the objectives and priorities set out in a Corporate Plan and a Community Strategy. Southend Borough Council’s Corporate Plan 2013 aims to create a safer, cleaner, healthier and more prosperous town with excellent Council services. The Sustainable Community Strategy 2007-2017 provides an agenda to improve the quality of life of the population of Southend. The Community Strategy aims to create a thriving regional centre which celebrates and enriches our community ensuring that the Borough develops in a sustainable manner. The ambitions are as follows:

1. To provide visionary leadership and enable inclusive, active and effective participation by individuals and organisations;
2. To create a safer community for all;
3. To be recognised as the cultural capital of the East of England;
4. To create a thriving and sustainable local economy, which extends opportunity for local residents and promotes prosperity throughout the borough;
5. To continue improving outcomes for all children and young people;
6. To protect the borough for current and future generations and to remain an attractive place for residents, businesses and visitors;
7. To provide opportunities, support and information to people of all ages and abilities to enable them to take responsibility for their health and choose a healthy lifestyle;
8. To be a borough with decent housing, in safe and attractive residential areas, that meets the needs of those who want to live here;
9. To be a borough that has a safer, more accessible, and affordable means of getting about, which supports the potential for regeneration and growth.

1.16 These themes provide a long term framework for the town and developer contributions will be essential to their implementation and delivery. Planning obligations will, therefore, be required to ensure that development proposals are proactively assisting the community in its efforts to achieve the priorities and targets outlined in the Community Strategy.

1.17 The Core Strategy Development Plan Document (adopted December 2007) sets out a clear aim and set of strategic objectives for the spatial planning policies that will guide development in the Borough to 2021. Improving the quality of the built and natural environment and minimising the impact on climate change are key to achieving national and local priorities in Southend. The aim of the Core Strategy is as follows:

“To secure a major refocus of function and the long term sustainability of Southend as a significant urban area which serves local people and the Thames Gateway.

1.18 To do this there is a need to release the potential of Southend’s land and buildings to achieve measurable improvements in the town’s economic prosperity, transportation networks, infrastructure and facilities; and the quality of life for all its citizens. This will include safeguarding and improving the standards of the town’s amenities and improving the quality of the natural and built environment.”

1.19 The Core Strategy aims to deliver 13,000 net additional jobs (distributed as outlined in Core Strategy policy CP1) and 6,500 net additional dwellings (distributed as outlined in Core Strategy policy CP8) in the period 2001 to 2021 within Southend. This is in addition to aiming to secure sustainable regeneration and growth focused on the urban area and securing a ‘step change’ in

the provision of transport infrastructure as an essential concomitant to new development. Greater levels of infrastructure will be required to support the growth proposed in the Borough and developer contributions through S106 and CIL will play an important role in securing appropriate levels of required services, facilities, and infrastructure to support growth.

1.20 The current local policy basis for planning obligations is found in Core Strategy DPD policy KP3 ‘Implementation and Resources’, which states that the Council will:

“require developers to enter into planning obligations to carry out works or contribute towards the provision of infrastructure and transportation measures required as a consequence of the development proposed. This includes provisions such as;

1. roads , sewers, servicing facilities and car parking,
2. improvements to cycling, walking and passenger transport facilities and services,
3. off-site flood protection or mitigation measures, including sustainable drainage systems (SUDS),
4. affordable housing,
5. educational facilities,
6. open space, ‘green grid’, recreational, sport or other community development and environmental enhancements, including the provision of public art where appropriate,
7. any other works, measures or actions required as a consequence of the proposed development, and
8. on-going maintenance requirements”.

1.21 More detailed guidance is provided in Policies CP3 (Transport and Accessibility), Policy CP6 (Community Infrastructure), Policy CP7 (Sport, Recreation and Green Space) and Policy CP8 (Dwelling Provision). Policy CP8 ‘Dwelling Provision’ makes specific reference to the provision of affordable housing (including key worker housing). It states that residential development will be expected to contribute to local housing needs; including special needs provision and sustainable use of land and resources. The policy describes the specific provision required by developers for various development thresholds and site areas.

1.22 The Southend on Sea Borough Local Plan (BLP), adopted in 1994, also provides policy guidance relating to the contribution of new and additional developments towards infrastructure, facilities and services. The following saved policies are relevant:

1. Policy C11 – encourages the provision of new works of public art as part of a development;
2. Policy L5 – encourages the provision of new entertainment, cultural and arts facilities in support of local arts organisations;
3. Policy R1 – encourages the provision of additional outdoor sports facilities, both public and private;
4. Policy R2 – encourages the provision of additional indoor sports facilities, both public and private;
5. Policy R5 – encourages the provision of new open space facilities; and
6. Policy U1 – states that in assessing development proposals the Borough Council will have regard to the need for additional infrastructure provision, such as roads, sewerage, schools and community facilities, and that applicants may need to enter into a legal agreement to ensure the provision of such facilities to enable the development to proceed.

1.23 Southend Borough Council, together with 281 other local authorities to date, has also signed up to The Nottingham Declaration on Climate Change, which requires local authorities to work with the community to develop an action plan to tackle climate change at a local level. By signing the declaration, the Borough Council committed itself to move towards environmental sustainability by cutting carbon emissions. In accordance with the commitments of the Declaration the Council will encourage developers to reduce their environmental impact.

Consultation

1.24 This document is a revision, in the context of CIL, of the Council’s previous Planning Obligations SPD (SPD2, adopted in November 2010), which was the subject of a 6 week public consultation from 9 November to 21 December 2009.

1.25 Previous consultations relating to this SPD included a Sustainability Appraisal as a supporting document. It is considered that neither the minor changes to this SPD in light of CIL or the legislation relating to Sustainability Appraisals require a revision to this supporting document.

The Strategic Importance of Planning Obligations

1.26 Planning obligations will be used to ensure that the strategic objectives of the Core Strategy are met thus delivering sustainable development in Southend on Sea. Development often creates the need for additional infrastructure, services and facilities. If these are not provided, there could be negative implications for local amenity and the environment. Whilst CIL will provide funding for Borough wide infrastructure that generally supports growth, planning obligations will continue to provide the mechanism through which the direct impact of development is mitigated by the developer on a site specific basis.

Purpose of this Supplementary Planning Document

1.27 The purpose of this document is to set out Southend Borough Council’s approach and priorities in respect of seeking planning obligations when considering planning applications, together with a summary of the relevant national and local planning policies with which this SPD is consistent. In addition, the SPD sets out how Section 106 planning obligations, CIL, planning conditions and Highways Section 278 (S278) agreements work together as a set of tools to help achieve sustainable development. The Council will consider the combined impact of all these tools on development when considering any planning decision. This document aims to provide clarity in respect of what infrastructure will be secured through planning obligations/planning condition/S278 and what will be CIL funded, plus procedural information and contact details to assist in the negotiation of S106 Agreements. However, it should be noted that this is a guide only and proposals will be assessed on a site by site basis with individual circumstances of each site being taken into consideration.

1.28 Where there is a choice between imposing conditions and securing a planning obligation through a legal agreement, it is noted that the Government considers the imposition of a condition as preferable. When considering applications, Southend Borough Council will therefore consider whether planning conditions can adequately control all the direct and indirect impacts of the development and secure the desired planning obligations, before it decides that a legal agreement is necessary.

1.29 A glossary of terms including a brief description of some of the words and acronyms that appear in this document is available in Appendix 4.