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Section 106:What they are and where we are

DARREN WILDINGDCLG

S106 - Legislation

Section 106 of the Town and Country Planning Act 1990

•restricts the development or use of the land in any specified way;

•requires specified operations or activities to be carried out in, on, under or over the land;

•requires the land to be used in any specified way;

•requires a sum or sums of money to be paid to the authority on a specified date or dates or periodically

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S106 – The Three Tests

National Planning Policy Framework

Policy Tests (also in Reg 122 of the CIL Regulations)

A section 106 must 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.

Should only be used where a condition is not appropriate.

S106 - Guidance

• Planning Obligations guidance published as part of new Government online planning practice guidance In March

• Updated 28 November following small sites threshold Ministerial announcement

• Stand-alone guidance on Review and Appeal Process (affordable housing renegotiation)

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S106 - Planning Practice Guidance (planning

obligations)Reinforces key messages:

• Obligations – should meet the 3 tests

• Local authorities should ensure that combined total impact of planning obligations does not threaten the viability of the sites and scale of development

• Obligations should be fully justified – needed to make unacceptable development acceptable in planning terms

• Applicants should submit evidence on scheme viability – where appropriate

• Agreements should normally include clauses stating when and how the funds will be used by, allowing for their return, where they are not

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Growth and Infrastructure Act 2013

Section 106 BA•Allows applications to be made to modify the affordable housing requirements of any Section 106 agreement regardless of when it was signed.•Based on economic viability.Section 106 BC•Applicants can appeal to the Planning Inspectorate where a council refuses or fails to determine such applications.

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S106 – BA and BC

• 31 appeals to date• 17 decided – 11 allowed; 6

dismissed• 3 withdrawn; 1 invalid• 10 being processed

S106 – Changes to Policy (1)

• A Written Ministerial Statement on 28 November amended the NPPF

• Planning Obligations guidance amended same day to implement policy change

• Changes (does not apply to Rural Exception Sites):

S106 affordable housing and tariff-style contributions should not be sought from sites of 10 units or less and 1,000 square metres or less

Lower threshold of 5 units or less (but requirements on 6-10 unit sites) for designated rural areas

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S106 – Changes to Policy (2)

• S106 affordable housing and tariff-style contributions should not be sought from extensions and residential annexes

• Financial credit for buildings brought back into lawful use or demolished, if building not ‘abandoned’

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S106 – What’s Next (1)

• Pooling restrictions on Section 106 apply from April 2015

• a council will not be able to pool more than five separate obligations in respect of either a particular item of infrastructure (such as a specific school) or a type of infrastructure (such as schools generally).

• this will apply regardless of whether a council has adopted the Community Infrastructure Levy

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S106 – What’s Next (2)

• 2014 Autumn Statement

• Government announcement that measures will be taken forward to speed up section 106, including:

• faster process for reaching agreement• improving transparency• revised guidance

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CIL

• CIL is the Governments preferred method for collecting develop contributions from infrastructure

• 57 areas currently charging the levy

• At least a further 130 have made significant progress towards charging

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Num

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CILWHERE?