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Section 106: Legislation, Policy, and Guidance

This article provides information on Section 106 of the Town and Country Planning Act 1990, including its restrictions, requirements, and the updated policy and guidance. It also explains the changes in 2014, the pooling restrictions, and the efforts to speed up Section 106 negotiations.

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Section 106: Legislation, Policy, and Guidance

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  1. SECTION 106 UPDATEDARREN WILDINGDCLG

  2. 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

  3. S106 POLICY • Paragraph 203 Should only be used where it is not possible to use a planning condition • Paragraph 204 (“the tests”; see also reg122) 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. • Paragraph 205 LPAs should take account of market changes and take flexible approach to prevent planned development stalling.

  4. S106 - GUIDANCE • Planning Obligations guidance published as part of new Government online planning practice guidance in March 2014 • Updated 28 November following small sites threshold Ministerial announcement • Further updated March 2015 to encourage speeding up of section 106 agreements • Stand-alone guidance on Review and Appeal Process (affordable housing renegotiation)

  5. PLANNING OBLIGATIONS GUIDANCE Section 106 Guidance Planning Practice Guidance: March 2015 Update • Clarifies expected timetables for the negotiation of Section 106 agreements • Advocates use of standardised agreements • Encourages earlier engagement at the pre application stage by all parties • Promotes greater transparency about what has been raised through Section 106 agreements and what it has been spent on • Suggests potential mechanisms for boosting local authority capacity • Sets out potentially relevant factors in implementing VBC

  6. S106 – BA AND BC 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. • 46 appeals to date • 27 decided • 7 withdrawn; 1 invalid • 11 being processed

  7. NOV 2014 POLICY CHANGE Section 106 Policy | Written Ministerial Statement (Nov 2014) 10 units or less (and 1,000sqm gross floorspace) • Affordable housing contributions should not be sought • Tariff-style s106 contributions should not be sought • Lower 5 unit threshold in designated rural areas, AONBs, National Parks • Vacant building credit - Intended to incentivise brownfield development • Where a vacant building brought back into use, or demolished to be replaced by new building, a credit equivalent to existing gross floorspace of vacant building should be offered when calculating AH contribution

  8. S106 – POOLING RESTRICTIONS • Pooling restrictions on Section 106 applied from April 2015 – or sooner if had CIL in place • 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).

  9. SPEEDING UP SECTION 106 NEGOTIATIONS • 2014 Autumn Statement commitment • Consultation Feb – March 2015; Government response issued 26 March 2015 • Consultation sought views on whether section 106 negotiations were a significant source of delay in planning process; also if current legislative framework provided effective mechanisms for resolving delays and disputes in negotiating agreements • Set out an option for speeding up section 106 negotiations through the development of a dispute resolution mechanism to be available where Section 106 negotiations breach set timescales.

  10. KEY MESSAGES FROM THE CONSULTATION • Agreement that Section 106 negotiations were a significant source of delay • Majority of responses felt legislative change required • Majority of respondents supported proposition that any future dispute resolution mechanism should be available where negotiations have breached statutory or agreed timescales • Planning Inspectorate and Royal Institution of Chartered Surveyors most commonly referred to as suitable bodies for taking forward a dispute resolution mechanism

  11. WHAT NEXT FOR SECTION 106? Governments productivity plan July 2015 ‘Fixing the foundations: Creating a more prosperous nation’ • Confirmed that the following would be introduced: “a dispute resolution mechanism for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly”

  12. CIL • CIL is the Governments preferred method for collecting develop contributions to infrastructure • 89 authorities charging CIL – including Mayor of London for Crossrail • 200 authorities at least at Preliminary Draft Charging Schedule stage • Review - referred to by previous Ministers - no announcement on timing, format, duration yet • Watch this space…

  13. CIL 2010 - 2015 • 91charging authorities • 200 authorities have at least consulted on preliminary draft charging schedule

  14. CIL: Trajectory

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