Making the best of planning conditions and S106 agreements. The importance of legal mechanisms. Conditions

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Oswald Banks
6 years ago
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1 Making the best of planning conditions and S106 agreements Sheila Holden OBE Director The STEP Consultancy Ltd The importance of legal mechanisms To ensure implementation takes place To secure specific outcomes which are crucial to the acceptability of the development To provide a means of adjusting activities in response to monitoring To establish default mechanisms Have to be in the control of the applicant Imposed on the decision notice Development must satisfy conditions Cannot involve financial contributions Must meet the tests of Circular 11/95 Necessary Relevant to planning Relevant to the development Enforceable Precise Reasonable in all other respects Conditions

2 Getting them right Simple and straight forward IF clearly worded BUT They are rigid and have limited scope They must be clear and precise They must include implementation clauses They should not come as a surprise to the appellant Cannot be corrected/amended later When to use them for travel plans Development is small scale Proposal is not complex Where the end user is known To secure simple on-site measures There is complete clarity of the content of the travel plan With agreement between developer and LPA Sample wording - TfL Prior to the commencement of the development hereby permitted, a travel plan shall be submitted to and approved in writing by the local planning authority. The travel plan, as submitted, shall follow the current Travel Plan Development Control Guidance issued by TfL and will include: (1) Targets for sustainable travel arrangements [insert desired for target(s)]. (2) Effective measures for the on-going monitoring of the travel plan. (3) A commitment to delivering the travel plan objectives for a period of at least five years from first occupation of the development. (4) Effective mechanisms to achieve the objectives of the travel plan by both present and future occupiers of the development. The development shall be implemented only in accordance with the approved travel plan.

3 Sample wording London Borough Before the development hereby permitted commences at the site, a Green Travel Plan regarding the whole of the development shall be submitted to and approved in writing by the Local Planning Authority. The Plan shall describe the means by which residents, visitors and users of the development shall be encouraged to travel to the site by means other than the private car. The Plan as approved shall be monitored and reviewed on an annual basis and a copy of that annual review and action plan arising shall be submitted to the Local Planning Authority. The measures described in the action plan shall be implemented in the time period identified. Creating robust conditions Preparation Implementation When should a scheme be submitted? What should the scheme cover? To whom should it be submitted/ What will be implemented? When will it be implemented? On-going monitoring How will the effect of the condition be monitored? Will they work for travel plans? Only in certain specific circumstances Not convinced on complex wording Appropriate for some individual on-site elements Potential problems Are they enforceable? How will sanctions be applied?

4 Planning Obligations Run with the land Restrict development or use of land Can secure off-site works Can require payments to deliver off-site works/services Either unilateral or Permission not granted until S106 agreement in place Circular 05/2005 Relevant to planning Necessary to make the development acceptable in planning terms Directly related to the proposed development Fair and reasonably related in scale and kind to the proposed development Reasonable in all other respects CIL regulations Apply to buildings Makes the middle 3 tests statutory Circular 05/2005 has not been cancelled Tests now more onerous as it is unlawful for a Planning Obligation to be taken into account in a planning decision on a development that is capable of being charged CIL if the obligation does not meet all 3 tests

5 Travel plans and S106 Enables holistic approach Can focus on outcomes Can include off-site measures Can secure contributions for a range of measures hard and soft Can provide funds for monitoring Provides clarity about default and sanctions Can include methodology for adjustments Gives both parties obligations and responsibilities What to include Outcomes targets Measures Timetable for monitoring, implementation and review Sanctions if targets not met Review processes Management and responsibility arrangements Funding and payment regime Default or amelioration arrangements Preparing obligations Corporately agreed policies and priorities Published guidance on requirements Standard clauses and model agreements Seek agreement at pre-app stage Submit draft S106 with application Manage the process actively Agree a timetable

6 Funding monitoring The local authority can secure contributions it needs for the monitoring process from developers in a manner that is reasonable given the scale of the development Fee scales should be set out as part of the published policy documentation alongside what the developer may expect from the local authority in terms of support, advice and review processes Key messages Never permit a development subject to a travel plan whose contents have not been agreed A section 106 provides the holistic approach and ability to secure funding for measures and monitoring Use conditions only if appropriate ensuring they are precise and enforceable Implications of new regs Tariffs for transport must be evidence based and published in an appropriate document ideally an SPD The contribution sought must meet the 3 CIL tests therefore: What will money be spent on Where will it be spent Is the sum and the location of the proposed spend reasonably related to the development

Implications for appeals Inspectors have to examine obligations Each element/contribution must be seen to meet the statutory tests If not will not be taken into account in the decision Ensure the

7 Implications for appeals Inspectors have to examine obligations Each element/contribution must be seen to meet the statutory tests If not will not be taken into account in the decision Ensure the links are there and explanation given in reports/appeal statements Inspectors always scrutinize conditions do they meet the tests of 11/95 Ensure that any conditions are clear, precise and enforceable Final thoughts Preparation is essential Have clear requirements Be precise The potential is there Don t lose opportunities Thank you

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