While new development can bring significant benefits to the local area including new homes and jobs there are often impacts upon the local area and infrastructure as a result of development, for example more people using local facilities such as roads, parks and other ammenities.
If a planning proposal is considered to be generally acceptable but may have some adverse impacts upon the local infrastructure the Local Planning Authority may seek to offset those impacts by securing planning obligations with the applicant to ensure and enhance the quality of development and to enable proposals that might otherwise have been refused go ahead in a suitable manner.
The scope of such agreements is laid out in Cicular 05/05 . For Household applications this is not normally required.
The obligations may:
- Restrict or regulate the development or use of the land, either permanently or during such period as may be prescribed by the agreement.
- Require the developer to carry out works or activities or provide facilities, either on or off site, or to fund the provision of these things.
Planning obligations can have significant effects on the use and value of land. We therefore strongly recommend that you take independent legal advice and seek Pre-Applications from us if you think that your proposed development may require a planning obligation to be agreed.
Where an agreement will be required heads of terms must be submitted by the applicant at the time of the formal submission for planning permission. This is to enable us to undertake the necessary consultations regarding the proposed agreement and to agree the obligations with the applicant within the statutory time period for determining the application. For this reason also we therefore strongly advise applicants to enter into pre-application discussion with us in order to agree upon the details and level of contribution prior to submission of a formal application.
How are the planning obligations secured?
The Council uses two methods to secure planning obligations depending on the complexity of the issues the obligation is required to cover and, in the case of financial contributions, the time that the applicant wishes to make the contribution.
- If the applicant wishes to keep costs and delays to a minimum, obligations which involve financial contributions only may be paid immediately before consent is granted. A Unilateral Undertaking must be submitted with the payment, the form for which will be provided by the Council for you to complete.
- If the obligation is more complex, for instance it involves the provision of Affordable Housing or land for public open space, or if you wish to defer payment of financial contributions to a future date, a deed must be entered into with the Council in accordance with Section 106 of the Town and Country Planning Act. (as amended).
- The Council Adopted Planning Contributions and Affordable Housing Supplementary Planning Document and subsequent updates provides guidance on what Torbay Council wishes to seek from developers in the way of s106 planning contributions. It is recommended that you read these documents and then contact the case officer early to establish if an S106 contribution will be required and to start the process to enable your application to be proceed expediently. Further information on the Planning Contributions and Affordable Housing SPD and the background to the Planning Contributions and Affordable Housing Supplementary Planning Documents is also available.
Section 106 Agreements
Section 106 Agreements are also known as ‘Planning Obligations’. They are formal deeds between the Local Planning Authority, the applicant/developer and all others who have a legal interest in the land, such as a mortgage lender.
Planning Obligations apply not only to the original landowner, but all future landowners and bind the land until their terms are satisfied.
The Council always recommends that applicants seek independent legal advice, as the Planning Obligation is a contractual document that you will be responsible for fulfilling.
As part of the submission of your planning application the Council requires you to provide ownership details for the land that the application relates to. Providing information early allows the Council’s legal team to establish who needs to be included in the Planning Obligation and can assist with processing your application to meet with the Local Planning Authority’s timetable.
The information can be provided by either submitting up-to-date Office Copy Entries and Title Plan (which can be obtained from HM Land Registry ) for registered land or an Epitome of Title (ownership documents, commonly known as deeds) for unregistered land. Any legal adviser will be able to assist with obtaining the Office Copy Entries and Title Plan or assisting with the provision of an Epitome of Title.
When the terms of the Planning Obligation have been agreed and information on title to the land provided, the Council’s Legal team will prepare an agreement. A charge is levied for this service. The Council will not accept s.106 Agreements that have not been prepared by its legal team.
When completed, the Planning Obligation will be held at the local Land Charges Department and, as such, details of any agreements will be included in the Local Authority Search.
What happens if I do not enter into a Unilateral Undertaking or a Section 106 Agreement?
In cases where the Planning Authority has not received a completed Undertaking or section106 within the time period for determination of the application, the proposal will be assessed on its merits having regard to the information available to the Council at that time and may be refused where it is felt that a Planning Obligation is required in order to overcome the detrimental effects of the proposals and make the development acceptable.
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