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 amenities.
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 to go ahead in a suitable manner.
A Planning Obligation is a legal agreement between the planning authority, the developer and other interested parties and is primarily intended to make acceptable those developments that would otherwise be unacceptable in planning terms.
The scope of such agreements is laid out in the National Planning Policy Guidance Opens in a new window. In most cases where a new home (even self-build) 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:
- 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.
By law Planning Obligations must meet all of the tests contained in Regulation 122 of the tests:
- Be 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.
An obligation cannot require the developer/landowner to solve an existing problem but it can ask for a contribution if the development will make it worse.6603
Planning Contributions and Affordable Housing Supplementary Planning Document
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-application advice from us if you think that your proposed development may require a planning obligation.
Where a planning obligation is required heads of terms should be submitted by the applicant at the time of the formal application for planning permission. This is to enable us to undertake the necessary consultations regarding the proposed obligation 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.
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 . (as amended).
- The Council’s adopted “Planning Contributions and Affordable Housing Supplementary Planning Document” (as updated) provides guidance on the types of planning obligations Torbay Council will seek from developers. It is recommended that you read this document and its updates and then contact the case officer early to establish if a planning obligation will be required and to start the process to enable your application to be processed 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
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) 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.
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.