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Legal agreements

Legal obligations that you may be bound to with your planning permission

New development can bring benefits to the local area. These include new homes and jobs. The impact on the local area is sometimes not so beneficial though. Examples are, more people using roads, parks and other amenities.  

It could be that a proposal is acceptable but could harm local infrastructure. We may address these impacts by requiring the applicant to fulfil certain obligations. The aim is to ensure and enhance the quality of development.  

A Planning Obligation is a legal agreement between: 

  • the planning authority 
  • the developer 
  • other interested parties 

In planning terms, the aim is to allow developments that would otherwise be rejected. 

Find out more in the National Planning Policy Guidance.  

In most cases where any new home is proposed, the applicant will need to enter into a planning obligation. For Household applications (e.g. extensions) planning obligations are not normally required. 

Planning obligations may require the developer to: 

  • restrict or regulate the development or use of the land, permanently or temporarily 
  • carry out works and activities either on or off-site 
  • provide facilities on or off-site 

If they don't do this they must agree to fund the provision of these things. 

By law, Planning Obligations must meet all the tests contained in Regulation 122 of the tests. They must be: 

  • necessary to make the development acceptable in planning terms 
  • directly related to the development 
  • fairly and reasonably related in scale and kind to the development 

An obligation cannot require the developer/landowner to solve an existing problem. It can ask for a contribution if the development will make it worse. 

Pre-Application discussion 

Planning obligations can have significant effects on the use and value of land. We recommend that you take independent legal advice. You can seek pre-application advice from us if you think that your proposed development may need a planning obligation.  

If we require a planning obligation, heads of terms should be submitted at the time of the formal application for planning permission.  

This enables us to undertake the necessary consultations regarding the proposed obligation. We can then agree on the obligations within the statutory period for determining the application.  

This is why we advise applicants to enter into pre-application discussions with us. We can then agree on obligations before a formal application is submitted.  

How we secure planning obligations 

The Council uses two methods to secure planning obligations. One depends on the complexity of the issues the obligation is required to cover. The other depends on the time that the applicant wishes to make the financial contribution.  

Obligation - financial only 

If the applicant wishes to keep costs and delays to a minimum, we require immediate payment. Consent will not be granted until this done. A unilateral undertaking must be submitted with the payment. We will provide this for you to complete. 

Obligation - complex 

A couple examples of complex obligations are those that may involve: 

    • the provision of Affordable Housing or land for public open space 
    • deferring payment of financial contributions to a future date 

In these in these instances a deed must be entered into with the Council. This must comply with Section 106 of the Town and Country Planning Act. 

Processing your application  

We recommended that you read Planning Contributions and Affordable Housing Supplementary Planning Document. It provides guidance on planning obligations. It is then best then contact the case officer early. You can then establish if we will require a planning obligation to start the process. This will mean we can process the application efficiently and quickly.

Section 106 Agreements 

Section 106 Agreements are also known as Planning Obligations. They are formal deeds between: 

  • the Local Planning Authority 
  • the applicant/developer 
  • all who have a legal interest in the land, i.e. a mortgage lender. 

Planning Obligations apply to all landowners. This includes current and future landowners. They bind the land until terms are satisfied. 

Ownership details 

As part of your planning application we need ownership details for the relevant land. Providing information early allows us to: 

  • establish who needs to be included in the Planning Obligation 
  • process your application within set timescales 

You can provide this by submitting either of the following:  

  • current Office Copy Entries and Title Plan for registered land from HM Land Registry 
  • an Epitome of Title, otherwise known as deeds, for unregistered land 

Any legal adviser will be able to assist with obtaining either of these. 

We will prepare an agreement when: 

  • the terms of the Planning Obligation have been agreed 
  • we have the relevant information on title to the land 

There is a charge for this service. We will not accept s.106 Agreements that have not been prepared by Torbay Councils legal team.

The Land Charges department hold the Planning Obligation once completed. Details of all agreements are included in the Local Authority Search. 

Community Infrastructure Levey (CIL) 

CIL is a non-negotiable charge on certain types of development. Different rates are charges depending on the proposal and its location within Torbay. We charge CIL for the following developments: 

  • new dwellings 
  • larger out-of-town/district centre retail and food and drink developments 

Some planning applications will need a Planning Application Additional Information Requirement form. This is so that we can assess if you need to pay CIL. Applications which do not need to submit this form are:  

  • householder applications 
  • listed building consents 
  • conservation area consents 

Additional Information Requirements Guidance is also available. 

Further information is available via the Planning Portal

Applications with no completed Unilateral Undertaking or Section 106 Agreement  

We will assess the proposal on its merits if we do not receive a completed Undertaking or section106 within the relevant timeframe. We will assess all information available to us. If we deem a planning obligation necessary, we may refuse the application. This is to overcome any detrimental effects of the proposals and make the development acceptable.