Section 106 planning obligations

Planning obligations

Planning obligations are often referred to as section 106 agreements.  They are a key mechanism in the planning system.  They make development acceptable which would otherwise be unacceptable in planning terms. They are used to:

• achieve planning objectives
• lessen the impact of development and/or
• compensate for loss or damage caused by development.

Planning obligations are unlikely to be required for all kinds of development. But they can be requested on a development of any size or type.

The term 'planning obligation' can relate to:

1. an agreement between a party/parties with an interest in the land (the “developer”) and the Council where all parties agree to do certain things. These can be bilateral (two parties) or multilateral (multi-party).
2. a sole undertaking made by the developer where just the developer agrees.

In both cases the planning obligation must be formalised and identify:

• the land in which the person entering into the obligation is interested
• the person entering into the obligation and their interest in the land (it should include all parties with an interest in the land concerned)
• the local planning authority which can enforce it and
• that the obligation is a planning obligation for the purposes of section 106 of the Town and Country Planning Act 1990.

A planning obligation runs with the land.  This means that:

• successive owners are bound by its terms
• the obligations may be enforced against both the original covenantor and against successors in title.

You can find more information on this and other types of contributions that developers have to make on the Developer Contributions webpage.

Use of planning obligations

Legally a planning obligation must be:

• necessary to make the proposed development acceptable in planning terms
• directly related to the proposed development and
• fairly and reasonably related in scale and kind to the proposed development.

Their use is governed by the principle that planning permission may not be bought or sold. They cannot be used:

• as a means of securing a share of the developer’s profit or
• to solve existing problems.

They can be used to help resolve an existing problem if the proposed development would make the situation worse.

There are three general aims to planning obligations. Aims vary according to circumstances:

1. achieving planning objectives – eg securing the provision of affordable housing, supporting Development Plan policies
2. lessening the impact of development – eg if a new development would lead to pressure on local schools, contributions could be sought to provide more school places 
3. compensating for loss or damage caused by development – eg offset harm through:
• substitution
• replacement or
• regeneration.

This could be:

• a landscape feature of biodiversity value
• open space or
• a right of way.

You can access more information about how Section 106 contributions and open space using these links:

• Public Open Space Section 106 Contribution Allocation Protocol 
• Application for Section 106 funding for Amenity Spaces form.

What happens, when?

Pre-application advice

Pre-application discussions and front-loading the planning process are important to create a:

• fast
• responsive
• transparent planning system.

This means that negotiating planning obligations should be done at the earliest opportunity and in an open, fair and reasonable manner.

Agreeing draft heads of terms

Issues are know as heads of terms.  Issues to be included need to be addressed and agreed early on.  We ask that draft heads of terms are submitted as part of the planning application. A planning application may not be registered if draft heads of terms are missing.

They should set out:

• the obligations that the developer/landowner is willing to be bound by. These will meet the needs generated by the development when the development scheme won't meet them itself.
• the agreed timing/triggers for satisfying the obligations. 

A draft section 106 template is available on the Council’s website.

If a planning obligation is required, planning permission will not be granted until the Council receives a planning obligation completed to its satisfaction.

Community involvement in the planning obligations process

Planning obligations are private contracts between the landowner/developer and the Council.  But their content is shaped by planning policies.

When a planning application that needs a planning obligation is submitted, you can view:

• the content of the draft head of terms alongside
• the submitted plans
• application form and any other associated information

Residents and other interested parties can comment on the content of the obligation relative to planning policies.

Monitoring planning obligations

The Council’s planning obligation monitoring officers do this. A record is kept of completed obligations for the monitoring process. It is vital that all parties understand their obligations so that they know what is required of them and when. Should you have any questions relating to your obligations, you should contact your planning obligations monitoring officer.

Monitoring means the community contributions expected from the development are secured. The benefits are:

• helping the existing community more readily accept the new development
• makes it easier to see compliance at transactional stages.

If a breach of an obligation occurs:

• the relevant party will be given an opportunity to remedy the breach
• the matter will be investigated and
• we make take enforcement action if not resolved.

Planning obligation enforcement

The Council can enforce planning obligations:

1. through the courts by application for an injunction
2. by carrying out any operations required in the planning obligation themselves.  The Council then recovers the cost from the person(s) against whom the obligation is enforceable.

Land charges

Planning obligations are registered as local land charges. They will be revealed in any local land charges search until they are discharged.  This can be done by a formal application to the Council. If a planning obligation is not being complied with, it may become difficult to dispose of the land given that obligations pass to the next owner.

Lifting or modifying planning obligations

A section 106 planning obligation may be modified (Deed of Modification) or discharged:

1. within five years of the date of the completion of the obligation, at any time by agreement between the Council and the person or persons against whom the obligation is enforceable
2. after five years beginning with the date the obligation was legally completed (or a later date specified in the obligation itself).

In case 1, you can request an agreement from the Council.  You must set out clear reasons why this is necessary. A fee for this is payable. You can find out more information on this link: Planning fees.

In case 2, you must submit a formal application for the proposal for modification or discharge. The Council must then decide the application:

1. if the obligation is no longer needed to serve its original intended purpose, it may be discharged
2. if it is still needed to serve its original intended purpose, but that this can be achieved by modifying the obligation in the way proposed in the application, the Council can agree to modify the obligation
3. if the obligation still serves a useful purpose, the Council can refuse to discharge the obligation.

Fees 

A full list of fees for section 106 planning obligations can be found in our Fees and Charges webpage.  Please note these do not include:

• any legal charges that may be incurred
• the cost of any application to modify or vary a planning obligation.

For queries about CIL and s106 payments, please contact the Infrastructure Team at cil@cornwall.gov.uk and planningobligations@cornwall.gov.uk respectively.

You can find more information on CIL and S106 on our Developer Contributions page.

For questions about the affordable housing requirement only, please contact the Affordable Housing team at affordablehousing@cornwall.gov.uk.