S106 –

Where we are- current context

Gilian Macinnes

Twitter:@gilianPAS

Date: March 2015 www.pas.gov.uk

s106 obligations can:

• restrict the development or use of the land in any

specified way

• require specified operations or activities to be

carried out in, on, under or over the land

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

or

• require a sum or sums to be paid to the authority

(or, to the Greater London Authority) on a

specified date or dates or periodically.

S106 can:

• be subject to conditions,

• specify restrictions definitely or indefinitely,

• And in terms of payments the timing of these

can be specified in the obligation.

If the s106 is not complied with, it is enforceable

against the person that entered into the obligation

and any subsequent owner.

The s106 can be enforced by injunction.

S106 Obligations

• S106 is not replaced by CIL

• Old reality – pre 2008

• New reality-post 2008:

Times have changed – viability

Times have changed – legislation

• Newest reality – April 2015

S106 – legal tests- CIL regs

• If the development is capable of being

charged CIL, the S106 obligation must meet

these legal tests:

• NECESSARY to make the development acceptable

in planning terms

• DIRECTLY RELATED to the development

• FAIRLY AND REASONABLY related in kind and

scale to the development

S106 Policy tests - NPPF

• 204. Planning obligations should only be

sought where they meet all of the following

tests:

• 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."

Do your s 106 obligations

currently meet these tests?

• Most basic tariffs are already contrary to

the regulations (they do not meet the legal

tests)

• If they don’t meet the regulations you are

in danger of legal challenge to your

decision making.

• Time is running out…. To get a CIL in

place

S106 obligations

• Site specific mitigation measures

• For pooled contributions up to April 2015/CIL

adoption, then for up to 5 developments where

infrastructure not funded by CIL

Chief planner: councils 'must face consequences' of lack of CIL progress

• Local planning authorities that fail to

get a Community Infrastructure Levy

(CIL) charging schedule in place by

next spring must 'face the

consequences', the government's chief

planner has said.

• June 2014 -DCLG chief planner Steve Quartermain

Delivery and viability of

development

• "Where obligations are being sought or

revised, local planning authorities should

take account of changes in market

conditions over time and, wherever

appropriate, be sufficiently flexible to

prevent planned development being

stalled.“

Paragraph 205- NPPF

Renegotiation of s106 A

• Amended Regulation (Feb 2013) to set out

a procedure for amending any planning

obligations entered into between 28 March

2008 and before 6 April 2010.Section 106A of the Town and

Country Planning Act 1990

• where the s106 - "no longer serve a useful

purpose" or "continues to serve a useful

purpose equally well“

• Sunset- April 2015

Renegotiation of s 106BA

• Changes in the Growth and Infrastructure

Act that require a council to renegotiate

previously agreed affordable housing

levels in a S106, and change the

affordable housing requirement Section 106BA of the

1990 Act

• viability of affordable housing requirements only

• not reopen any other planning policy

considerations or review the merits of the

permitted scheme

Appeals

• Under Section 106B of the Town and

Country Planning Act 1990

• Under section 106 BC- Appeal on

affordable housing viability – revised level

of Affordable housing for 3 years

DCLG s106BA and BC Guidance

• Overview of what

evidence is required.

The Minister of State, Department for

Communities and Local Government

(Brandon Lewis):

• Affordable housing and tariff changes

Affordable Housing and tariff-

threshold

• 10-units or less, and which have a

maximum combined gross floor space of

1,000 square metres, affordable housing

and tariff style contributions should not be

sought. This will also apply to all

residential annexes and extensions.• Brandon Lewis, The Minister of State, Department for Communities and Local

Government (28/11/14)

Rural designations

• In designated rural areas- authorities may

choose to implement a lower threshold of 5-units

or less, beneath which affordable housing and

tariff style contributions should not be sought.

• If the 5-unit threshold is implemented, payment

between six to ten units should be sought as a

cash payment only and be commuted until after

completion of units within the development. • Brandon Lewis, The Minister of State, Department for Communities and Local

Government (28/11/14)

No change-

• Not applicable to rural exception sites

• Affordable housing and tariff style

contributions should not be sought in

relation to residential annexes and

extensions.

• Brandon Lewis, The Minister of State, Department for Communities and Local

Government (28/11/14)

•

Vacant buildings

• “ A financial credit, equivalent to the

existing gross floor space of any vacant

buildings brought back into any lawful use

or demolished for re-development, should

be deducted from the calculation of any

affordable housing contributions sought

from relevant development schemes. “

• Does not apply to vacant buildings which

have been abandoned. • Brandon Lewis, The Minister of State, Department for Communities and Local

Government (28/11/14)

Autumn Budget Statement and

February Consultation

1.141…taking steps to speed up section

106 negotiations, including revised guidance,

consulting on a faster process for reaching agreement,

considering how timescales for agreement could be

introduced, and improving transparency on the use of

section 106 funds; …Page 42 (4/12/14)

• Consultation -Section 106 Planning

Obligations – speeding up negotiations Student accommodation and affordable housing

contributions - February 2014https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/405819/Section_106_Pl

anning_Obligations___speeding_up_negotiations.pdf