In addition to legal testing, policy testing is included in the National Planning Policy Framework (NPPF): In 2014, the government exempted developments of 10 units or less and developments of less than 1,000 square metres of floor space from the obligation to contribute to affordable housing under section 106. The directive was later withdrawn following a court challenge and, following a successful appeal by the government, was reinstated in the amended planning practices guidelines of May 19, 2016. It is not appropriate for planners to establish new formulas for planning commitments in supplementary planning documents or evidence base documents, as these would not be reviewed. While standardized or articulated evidence may have influenced the identification of needs and costs and the establishment of plan guidelines, the decision-maker must nevertheless ensure that any desired planning obligation meets the legal criteria set out in section 122. This means that if a formula-based approach is taken to proponent contributions, the charge can be used to account for the cumulative impact of infrastructure in an area, while planning commitments are appropriate to fund a project directly related to that particular development. The balance between the use of S106 and CIL will vary depending on the type of area and the type of development. Further guidance on the balance between section 106 and the CIL can be found in the April 2014 CIL Guide: The legal criteria for determining when you can use a section 106 agreement are set out in Regulations 122 and 123 of the Community Infrastructure Charge Regulations, 2010, as amended. The Growth and Infrastructure Act (Section 7) introduces new provisions into section 106 of the Planning Act 1990, introducing a new application and appeal procedure for the review of planning requirements for building permits relating to the provision of affordable housing. The changes require a board to assess the feasibility arguments, renegotiate the levels of affordable housing previously agreed to in an S106, and change the affordable housing requirement or face an appeal.
Typical uses of development obligations include obtaining affordable housing and determining the type and timing of that housing; and securing financial contributions for the provision of infrastructure or affordable housing. However, these are not the only uses of an obligation under section 106. A Section 106 commitment may: Planning commitments are legal commitments made to mitigate the impact of a development proposal. If section 106 is not complied with, it will be enforceable against the person who made the undertaking and against any subsequent owner. Article 106 may be enforced by injunction. Planning obligations with the State are legally binding and enforceable. A unilateral commitment cannot bind the local planning authority because it is not a party. A local authority may require an S106 agreement to be entered into if the following criteria are met: Development obligations help mitigate the effects of unacceptable development to make it acceptable from a planning perspective.
Town planning obligations may constitute grounds for granting planning permission only if they fulfil the conditions necessary to make the development acceptable in accordance with the plan. You must: In addition, the guidelines state that, according to the Ministerial Declaration on Starter Houses, LPAs should not require Section 106 affordable housing contributions for starter housing projects (but can still claim Section 106 which mitigates development impact). Planning obligations – sometimes referred to as section 106 agreements – are legally enforceable commitments made under section 106 of the Town and Country Development Act 1990 (as amended). They are negotiated and carried out between a developer and the Local Planning Authority (LPA) to address the PLA`s concerns about the cost of providing new infrastructure for an area. 204. Planning obligations should only be invoked if they meet all of the following criteria: These criteria are defined as regulatory criteria in Regulation 122 (as amended by By-laws, 2011 and 2019) and as policy tests in the National Planning Framework. These tests apply regardless of whether or not there is a tariff for the region. Under section 106 (A) of the Planning Act, a person bound by the obligation may apply for the obligation to be varied or performed after five years. This means that, subject to compliance with the 3 criteria set out in CIL Regulation 122, charging authorities can use funds from both the charge and the planning obligations of Article 106 to pay for the same infrastructure, irrespective of the number of planning obligations that have already contributed to an infrastructure. With respect to proponents` contributions, the Community Infrastructure Charge (CIL) did not replace Section 106 agreements, and the introduction of the LIC resulted in tighter testing of the S 106 standard.
Section 106 agreements should focus on the specific mitigation measures required for new development in terms of proponents` contributions. CIL has been developed to take into account the broader implications of development. There should be no circumstances where a developer pays CIL and S106 for the same infrastructure in relation to the same development. Planning obligations under section 106 of the Town and Country Development Act 1990 (as amended), commonly referred to as S106 agreements, are a mechanism that makes a development proposal acceptable from a planning perspective that would otherwise be unacceptable. They focus on mitigating site-specific development effects. Section 106 agreements are often referred to as “proponent contributions,” as are highway contributions and community infrastructure charges. To benefit from the planning obligations, they must comply with three legal criteria set out in Part 11 of the Community Infrastructure Charging Regulations, 2010. A planning obligation can only constitute grounds for granting planning permission if it is commonly referred to as `Article 106`, `s106` and `development contributions` when considered alongside motorway contributions and the Community infrastructure charge. The planning commitment is a formal document, a document indicating that it is a commitment for planning purposes, identifying the country concerned, the person making the commitment and his or her interest, and the competent local authority that would enforce the commitment. It can be a universal commitment or a multi-party agreement.
The revised and updated NPPF was released in July 2018, with a few other minor changes in February 2019. With regard to cost-effectiveness, it now states that “all assessments of profitability, including those carried out at the planning stage, . should be made available to the public. More detailed guidance on cost-effectiveness planning practices was updated in May 2019. Under the heading Responsibility, it is stated that any feasibility assessment should be prepared on the basis that it is publicly available – even in exceptional circumstances where this is not the case, a summary should be provided. For all information reported on developer contributions, the infrastructure should be classified as follows: Authorities may choose to report financial contributions or direct deployment in these categories. Local authorities can use this tool to complete and prepare their infrastructure funding declaration. Planning obligations under an S106 agreement are automatically registrable as local land royalties in public registers maintained by local authorities.
A local authority may also attempt to register the S106 agreement for ownership of the property through a unilateral or agreed notice in Her Majesty`s Land Registry. This notice or restriction must be written on the security and prevents a sale or other transaction unless specific consents or certificates are obtained. Plan promoters and local education authorities should therefore agree on the most appropriate funding mechanisms for education promoters and assess the extent to which developments should be needed to mitigate their direct impact. Planners and decision-makers should consider existing or planned/committed school capacity and determine whether it is sufficient to accommodate proposed development in relevant school site planning areas. It may be possible to require contributions from the proponent for additional capacity and, where appropriate, this requirement should be specified in the plan. The requirements should cover all stages of school from 0 to 19 years of age, special educational needs (which could result in greater distances) and, where appropriate, temporary and permanent needs (e.g. school transportation costs and temporary school services before the opening of a new permanent school). An agreement under section 106 (agreement S106) is an agreement between a local authority and a landowner and/or developer under section 106 of the Planning Act 1990.