Section 106 Frequently Asked Questions

Under S106 of the Town and Country Planning Act 1990, as amended, contributions can be sought from developers towards the costs of providing community and social infrastructure, the need for which has arisen as a result of a new development taking place. This funding is commonly known as ‘Section 106’

What is the Community Infrastructure Levy (CIL)?

How is a S106 Negotiated?  

Does the Council have a s106 Supplementary Planning Document (SPD)?

What is the Planning Contribution Overview Panel (PCOP)?

What happens after the Planning Committee determine an application?

How do I make a Payment to the Council?

When are S106 Monies Paid?

Does S106 Money earn interest?

How is S106 Money Allocated once it is received?

Does the process involve public consultation?

Who is responsible for S106 obligations?

What is the Community Infrastructure Levy (CIL)?

The Community Infrastructure Levy (CIL) is a new charge which local authorities will be empowered, but not required, to levy on most types of new development. The proceeds of the levy will provide new local and sub-regional infrastructure to support the development of an area in line with local authorities’ development plans. CIL will be levied in pounds per square metre of the net additional increase in floorspace of any given development.

From 6 April 2010 it became unlawful for a planning obligation to be taken into account when determining a planning application if the obligation does not meet all of the following tests:

(a) necessary to make the development acceptable in planning terms

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development.

 

This will apply to applications for developments that are capable of being charged CIL, whether there is a local CIL in operation or not.

Once adopted by the authority, CIL will not replace S106 in its entirety and S106 could still legitimately be used for site specific mitigation measures.

LBTH will be pursuing a CIL. Further information will be available on this site in due course.

For further detailed information, please refer to the Communities and Local Government website which contains an overview and a short explanation of the CIL

regulations. http://www.communities.gov.uk/documents/planningandbuilding/pdf/communityinfrastructurelevy.pdf

How is a S106 Negotiated?

The negotiation of a S106 legal agreement is led by an allocated Planning Officer in discussion with the Developer and other colleagues both within and outside the Council. On smaller applications the s106 may only require the proposed development to be simply car-free for example, however larger schemes may require a number of financial and non-financial contributions to mitigate the impact of the proposal upon the surrounding area. In such circumstances, the Planning Officer, in conjunction with a number of internal and external consultees, will seek to agree the themes of contributions (known as ‘Heads of Terms’), the contribution sums and the triggers for payment through discussion and negotiation. The specific heads of terms will depend on the nature, scale and location of a development and its associated impacts. This is in line with the three tests as set out in Community Infrastructure Regulations (2010). (http://www.opsi.gov.uk/si/si2010/draft/ukdsi_9780111492390_en_1) which state that any s106 planning obligations must be:

(a) Necessary to make the development acceptable in planning terms;

(b) Directly related to the development; and

(c) Fairly and reasonably related in scale and kind to the development

Applicants are advised to utilise the Council’s pre-application services (http://www.towerhamlets.gov.uk/lgsl/601-650/608_development_control/pre-application_advice.aspx) in order to ascertain the scale and nature of the likely s106 contributions associated with a development proposal.

Applicants should initially consult LBTH’s Planning Obligations SPD which provides guidance on the use and scale of planning obligations in Tower Hamlets. Applicants should use this SPD alongside an analysis of their proposed works to consider the impacts of the proposed scheme and any planning obligations likely to be required to mitigate the impacts of development. These details should be submitted as a draft ‘Heads of Terms’ document alongside the pre-application submission documentation,to allow officers sufficient time to consider the details contained within the draft ‘Heads of Terms’.

What is the Planning Obligations Supplementary Planning Document (SPD)?

The Planning Obligations SPD is based on the principles established across a range of planning policies enshrined in legislation as well as national, regional and local planning guidance. Along side the Core Strategy the SPD forms a part of LBTH’s Local Development Framework and reflects the Mayor of Tower Hamlets’ Priorities for the borough. The document clarifies the current process and provides formulae for negotiating both financial and non-financial planning obligations. The SPD also provides certainty to applicants on when planning obligations will be sought and constitutes an important document to inform local residents about planning obligations.

Please contact the Strategic Planning Team (planning@towerhamlets.gov.uk) for more information with regard to the progression of the SPD.

What is the Planning Contribution Overview Panel (PCOP)?

In order to agree and if necessary prioritise the Council’s S106 requests, a Planning Officer will prepare a Development Report (prior to Committee) which outlines the proposed S106 package. This is presented to the Council’s ‘Planning Contribution Overview Panel’ (PCOP). PCOP is an internal, cross directorate officer-led panel set up by Cabinet in 2004 that has the authority, under delegated powers, to monitor the implementation and expenditure of S106 agreements and monies, and ensure delivery in accordance with the terms of the relevant agreement. The PCOP panel consists of Officers across a number of Directorates including: Development & Renewal, Communities, Localities & Culture, Chief Executive’s, Children, Schools & Families.

The PCOP panel considers the balance of the s106 package and whether it has appropriately represented Council priorities, as relevant for the specific proposal. It also ensures that the recommendation in the development report conforms to legal requirements and is valid in all other respects, e.g. the correct contribution amount, suitable trigger points for payment and that the obligation is deliverable. PCOP supports or rejects the s106 package and will suggest amendments to rejected reports.

Following agreement of PCOP, the proposed contributions will be included within a relevant Committee Report which is considered by Members as part of their assessment of the planning application. These Committee meetings are open to the public.

Elected Members then make the final decision as to whether to permit a development scheme and accept the S106 package which is detailed in the Committee report. Applications are sometimes refused if the s106 offer is considered as insufficient mitigation of the development.

What happens after the planning committee determine an application?

Reports considered by the Committee which recommend the grant of permission (as well as strategic applications which the Mayor has allowed the approval of, see below) will normally contain recommended Heads of Terms for a s106 Agreement. If these terms are agreed by the Committee, the applicant’s lawyers can then finalise the S106 Agreement in conjunction with our legal team. This is usually undertaken within a fixed time frame. Upon completion of the s106 Agreement, the planning permission is formally issued.

Large-scale and complex applications which are heard by the Strategic Applications Committee are normally referable to the Mayor of London. Once the Committee has resolved to determine the application, it is required to refer it back to the Mayor to allow him to decide whether to direct refusal, take over the application for his own determination or allow the planning authority’s decision to stand.

How do I make S106 payments to the Council?

It is the applicant’s responsibility to make payments when they are due and to ensure that they are on time. Payments can be by cheque made payable to the “London Borough of Tower Hamlets” and sent to a Planning Obligations Officer or through the BACS transfer system. Payments must specify both the S106 agreement Planning

Application number and site address in order to identify the relevant legal agreement and site.

When are S106 monies paid?

S106 monies are usually paid in installments at key stages during the construction of a development. The stages at which payments are due are known as ‘Trigger Points’. For example S106 contributions could be payable by installments with 50% paid upon commencement of development and the remaining 50% paid upon completion of a development. As developers have three years to commence a development once planning permission is granted, it can therefore take a number of years before S106 contributions are received by the Council from the time permission was originally granted. Where a development does not commence at all, the S106 will most likely expire.

Does s106 money earn interest?

Whilst schemes are waiting to be programmed and delivered, the Council is legally obliged to hold the S106 contributions it has received in an interest bearing account in accordance with the specifications in the agreement.

The accruing of interest is necessary to ensure that the contribution does not lose value from the date it is paid; and as most accruing sums are restricted through a S106 agreement, the interest will accrue against the specific contribution. It is then used as part of the budget to deliver a specific improvement.

How is S106 money allocated once it is received?

Until monies are received by the Council they are not formally allocated to specific projects in accordance with the S106 agreement. This is because money secured in a s106 agreement is not a guaranteed funding stream. Implementation can take up to three years from the granting of the permission. In some cases a development may not happen at all and the s106 money related to such developments will not be received.

These triggers are also specific and vary from agreement to agreement. The actual receipt of these amounts will be staggered across a number of years in accordance with specific trigger points (see previous section 6). For example, a payment could be due upon commencement of the development and another payment not due until the first occupation of a residential unit.

When s106 money is available, i.e. in the accounts, and that money is required for a project, a Project Initiation Document is prepared by the assigned LBTH Project Manager which details the project, its s106 justification, responsibilities for governance, programming, any match-funding, risks, other partners etc. This is to ensure monies are spent in accordance with the specific legal agreements in a controlled project management environment.

Officers programme these resources, in detail, to projects that are relevant at the time the money is received. These projects will reflect current Council priorities across a broad range of topics. The individual Directorates who cover the specific improvement area take the lead on identifying and managing projects. All decisions to finally allocate resources are then approved for expenditure through the Council’s Planning Contribution Overview Panel.

It is important to recognise that S106 money is already either largely allocated to a range of projects or ring-fenced to specific programmes which will deliver improvements in accordance with the specific terms negotiated through legal agreements. The legal agreement identifies, as tightly as possible, exactly what the money secured is for and/or how it is to be prioritised in the future when it is paid.

Does the process involve public consultation?

Public consultation is essential to successful Planning. The Council want to hear what residents’ and other stakeholders’ have to say so that their views shape the way local areas change. All key Council policy documents which inform the Council’s approach to S106, such as Corporate Strategies Development Plans and Local Area Partnership Action Plans, are publicly consulted on. In particular, the Core Strategy, which sets out priorities for infrastructure across the Borough has been subject to extensive public consultation. These priorities are used to inform s106 negotiations by planning officers.

Who is responsible for S106 obligations?

Planning obligations contained in S106 agreements run with the land to which they relate. Because Planning Obligations run with the land, any outstanding obligations will be transferred with the land if it is sold. Planning Obligations can therefore effect the value of land. This information is registered as a ‘Local Land Charge’ on the Land Charges Register (http://www.towerhamlets.gov.uk/lgsl/601-650/610_local_land_charges_person.aspx) and will be revealed in searches submitted on behalf of a potential purchaser of an individual unit or entire development site.

Any outstanding planning obligations are legally enforceable against the registered owner, this applies to successors in title, of the land to which the obligation relates. This will be cited in the land registry search of the plot of land.

Planning obligations will not be enforceable against individual units within the development site. This is not to say that s106 obligations will not impact upon your property. Where “car free” obligations apply, for example, you will not be eligible to apply for a permit for on-street parking.

The Council will enforce against non-payment of a S106 contribution if a developer is found to have reached a ‘trigger point’ without paying the Council within the required timescales as set out in the agreement

 

Hands on Middlesbrough Guide to Planning Applications

hands on ENVIROMENT

“Protect & Promote Middlesbrough’s Heritage, Woodland, Conservation Areas and Green Space For Future Generations

There are two types of planning applications that may be of interest to you. This could be a single house development such as an extension or a multi-house large scale development. The local authority will advise the application through a letter to nearby neighbours, possibly a poster attached to a lamp post as well as placing the application on the Council’s planning website. Objections will be accepted by the Council planning officers during a 21 day public consultation. A response can be made by direct e-mail, via the “comments” facility on the Council website or by letter to the planning officer.

If you are unhappy about the development proposal, or any aspect of it, you can make an objection to the council. Before making an objection you could discuss the aspect of the proposal you do not like with the planning officer and the grounds for your objection. It may be something that can be changed during the application process. If it does not then you have the right to object:

  • Put your objection in writing to the council’s planning department
  • Contact other people affected by the proposal and encourage them to write letters of objection.
  • Do not be tempted to organise a petition; it will not carry any weight and is a waste of time. Also avoid using a ‘standard’ letter. Objectors should use their own words and write, type or word process their letters themselves. Objections will not carry the same weight if they are seen to have been written or produced in a standardised form.
  • Contact your local Ward councillors and Parish councillors and ask them to support you. They have access to planning expertise to advise you. Meet them on site and put forward your grounds of objection.
  • Submit your objections within the 21 day time scale. It is possible to request an extension.
  • View the officer’s report to the planning committee, it usually becomes available three working days before the Committee meeting and will be available on the Council’s planning website.
  • On the day of the planning committee meeting you may be allowed to speak at the meeting to address the Committee members.

It is important that you object on planning grounds only. Objection on the grounds of devaluation of neighbouring properties, personal issues with the applicant, disturbance during the building work, these are not planning issues.

For certain large scale developments it may be beneficial to start a local campaign group to fight the application. It is essential to involve the ward and Parish councillors in such a campaign.

The planning committee will usually consider the application for approval or refusal within 8 weeks for small scale applications and 13 weeks for large scale applications. Sometimes these timescales can be extended with the agreement between the council and the developer if there are some outstanding contentious details.

Not all decisions are made by the planning committee. Where no objections are received or are insufficient in number (less than five) or considered spurious a delegated decision can be made by the chief planning officer. However an objection from a Ward Councillor will ensure the application will be decided by the planning committee.

Planning Considerations

  • Over development.
  • Conflict with the character of the area.
  • Loss of privacy by overlooking.
  • Substantial damage to the amenities of residents caused by noise, disturbance, smell or loss of light.
  • Loss of community green space.
  • Threat to wildlife and the biodiversity of the area.
  • The visual impact of a development – what it will be like to look at. Effect on the character of the area.
  • Potential highway congestion including the need for adequate parking within the development.
  • There may be precedents set by previous planning decisions refusing permission for applications of a similar nature.
  • Change of use of a property.
  • Inappropriate design or materials

There are number of local authority policies such as the Local Plan and central Government policies such as the National Planning Policies Framework that the planning officers are obliged to comply with. Also some small scale developments, known as ‘permitted development’ receive automatic planning permission. Contact the planning office if in doubt.

Conditions applied to applications

You may agree with the application but disagree with just some of its aspects. In this case, when objecting to those aspects, you could ask for conditions to be attached to the approval for planning permission. Objecting to a planning application and asking for conditions to be added is known as making a representation rather than an objection.

The Appeal Process

If the council approves a planning application you have no right to appeal the decision. However, if a large scale development application seriously breaches a community amenity it is possible before a council decision is made to request the Secretary of State to make a ‘call-in’, it is usual to request the local MP to make this request. If planning permission is refused by the council, or conditions are imposed which the applicant considers are unacceptable then the applicant has six months to appeal to the Secretary of State. An independent Planning Inspector is appointed to listen to both sides of the case and make a recommendation to the Secretary of State who will then make the final decision. Appeals can be heard in three ways:-

  1. Written representation – This involves the exchange of written correspondence by all parties and the opportunity to comment on each other’s case. The inspector will also visit the site.
  2. Informal Hearing – Both parties to present their case to the Inspector in person in a relaxed and informal setting. The hearing usually takes the form of a round table discussion, followed by a site visit.
  3. Public Inquiry – This follows a clear set of procedures and allows all interested parties to give evidence and cross-examine the evidence of others in a formal and courtroom-like setting. The Inspector will make a site visit and may either issue a decision letter or report to the Secretary of State for final decision.

At any Inquiry the local authority will seek to defend the decision that is being appealed against. The local community does have an important role to play. If you objected to the application you will be invited to support the local authority either in writing to the Inspector or by addressing the Hearing or Public Inquiry.

If you wish either to object or to support the applicant you can put your view in writing or ask to attend the inquiry and give evidence. If you do speak you are likely to be questioned about your evidence, but the Inquiry is not intended to be intimidating. Just state your case simply and clearly.

There is now a “fast track” appeal procedure for “householder” applications. The Inspector will only view any letters received by the Council and possibly an unaccompanied site visit to come to a decision.

Benefits of development

Approved large scale developments place a requirement on the developer to provide sums of money to the impacted community through a section 106 obligation. It is essential for the community when considering and even objecting to a development that use of this money should be taken into account at the very beginning. A list of requirements (heads of terms) should be presented to the council, usually via a ward councillor. A legal agreement is then drawn up between the council and the land owner (usually the developer) to include the finally agreed heads of terms for eventual benefit to the community. It is essential the community monitor the use of these monies to ensure they are used appropriately.

To check out the latest online planning applications in Nunthorp

Google – ‘Planning applications, Middlesbrough Council’; Click on ‘Advanced’;  Click on ‘Parish’;  select ‘Nunthorpe Parish Council’ ;  scroll down and click on ‘Search’: click on application title.

 

Planning process – planning reasons for considering an objection

 

development op

When making comments on any planning application, all reasons you give must be planning reasons. So as to assist with your comments I have put together a tick list of valid planning reasons for objecting to any planning application:

Site considerations

  • over development
  • insufficient garden or amenity land
  • lack of private space
  • excessive bulk or scale
  • introducing unnatural features
  • spoiling natural or existing contours
  • incompatible with the design of existing buildings
  • loss of important trees, hedge or other vegetation
  • threatening a public right of way
  • insufficient parking spaces
  • failure to meet council’s access and on-site turning standards
  • loss of important wildlife habitats
  • harm to rare plants or animals
  • destroying traditional field patterns
  • loss of high-quality agricultural land
  • public sewers inadequate
  • risk of flooding or creation of flood risk
  • threat to health of occupants through previous contamination

DSCN1881

Planning Policy

  • conflict with LDF Core Strategy or extant Local Plan policies
  • contrary to government planning policy guidance
  • not complying with council’s informal policy guidance
  • prejudice comprehensive development of an area
  • exceptional personal circumstances

Special Designation

  • loss of important Tree Preservation Order trees [n.b. most trees in a Conservation Area are automatically subject to TPO’s
  • ‘inappropriate development’ in Green Belt
  • harm to landscape of National Park or Area of Outstanding Natural Beauty / National Scenic Area
  • threat to wildlife or geological features of Site of Special Scientific Interest
  • conflict with character of Conservation area
  • damage to historic or architectural value of listed building
  • harmful to the setting of Listed Building
  • destroying archaeological remains or monuments

longridge woodDSCN2710

Planning history

  • losing important social beneficial uses
  • reducing housing accommodation in areas of housing shortage
  • other applications refused and no change in circumstances
  • contrary to inspector’s views in previous appeal decision
  • incompatible with existing planning permission

Neighbours

  • overlooking adjoining properties
  • overshadowing
  • blocking natural daylight
  • generating noise, disturbance, smells, pollution
  • unsociable hours of operation

Surrounding Area

  • dominating nearby buildings
  • conflict with the pattern of development
  • poor relationship with adjoining buildings
  • visually damaging in the landscape or in the setting
  • conflict with the character of the area
  • environmental damage caused by vehicles
  • inconvenience for pedestrians
  • road system is inadequate
  • prejudice highway safety
  • loss of open spaces
  • losing historic street pattern
  • adverse affect on rural economy
  • adverse effect on economy or businesses
  • loss of employment or traditional industries
  • threat to viability and vitality of town centre
  • creating imbalance between jobs and homes
  • failure to meet housing needs
  • better alternative sites available

Middlesbrough Planning Applications

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Middlesbrough Council has a public consultation process on planning applications submitted by householders and developers. The consultation allows the submission of comments or objections over a 21 day period commencing from the date the planning officer validates the application. Nearby neighbours are sent letters through the post advising them of the consultation. The application is also displayed on the Council planning website. Parish Councils and Community Councils are automatically sent a copy the applications via post or the Internet e-consult arrangement. Regardless of any delays in the post or in placing the application on the website the consultation is still a 21 day period from the date of validation.

If you are opposed to an application or any aspect of it, you can make an objection to Middlesbrough Council. Before making an objection it is advisable to discuss the application with the Council planning officer to discuss your grounds for objection. It may be something that can be changed during the application process. If this is not possible (usually not) then you have the right to submit your objection:

  • Submit your objection in writing or submit it electronically via the Council planning website to the Council’s planning department.
  • Contact other people affected by the proposal and encourage them to write letters of objection. This is more effective than a petition – even a petition with 1,000 names will only count as one objection.
  • Contact your local Ward Councillors and ask them to support you. Meet the Ward Councillors on site and put forward your grounds of objection. Speak with or write to the Parish Council or Community Council and put forward your objection for their support.
  • After the public consultation is finished the Planning officer will prepare a report to the Planning Committee advising their recommendation on either refusal or approval of the application based on existing planning policies and the input from objectors. This report is usually available for viewing on the Council planning website ten days before the Planning Committee meeting.

If you wish to speak at the Planning Committee meeting you can submit a request via the Planning Committee coordinator.

It is important that you object only on planning grounds. Objection on the grounds of devaluation of property, effects on a view or disturbance during the building work are not planning issues.

Planning Considerations

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  • Substantial damage to the amenities of residents caused by noise, disturbance, smell or loss of light.
  • The visual impact of a development – what it will be like to look at, loss of significant natural view (e.g. Roseberry Topping), Highway traffic flow and safety including the need for effective parking.
  • Any contravention of the approved policies of the Local Authority and central Government policies as set out in a wide range of Government circulars and planning policy framework/guidance notes.
  • Precedents set by decisions already taken, granting permission to applications of a similar nature elsewhere in the area (cumulative effect).
  • The existing use of the site, or any previous planning permission already granted for the site.
  • Design, materials, amenity space of the scheme etc. although the degree of control in these areas is restricted.

Planning Conditions applied to approved applications

You may agree with the application but disagree with just some of its aspects. In this case, when responding to those aspects you could ask for planning conditions to be attached to the approval for planning permission. Not necessarily objecting to a planning application but asking for any of the standard planning conditions (discuss with the Planning Officer) to be applied is known as making a representation.

The Appeal Process

There is no right of appeal by the public on a decision if the council approves a planning application with which you disagree. It is essential you must object during the 21 day consultation period. If planning permission is refused by the Planning Committee or conditions are imposed which the applicant considers are unacceptable, then the applicant has six months to appeal to the Secretary of State.

An independent Planning Inspector is then appointed to listen to both sides of the case and will either make a decision or provide a recommendation to the Secretary of State who, in some cases, will make the final decision. Appeals can be heard in three ways:

  1. Written representation – This involves the exchange of written correspondence by all parties and the opportunity to comment on each other’s case. The inspector will visit the site and usually makes a decision relatively quickly.
  2. Informal Hearing – This allows both parties to present their case to the Inspector in person, in a relaxed and informal setting.

The hearing usually takes the form of a round table discussion, followed by a site visit. A decision letter will then be issued. This usually takes a few months to complete.

  1. Public Inquiry – This follows a clear set of procedures and allows all interested parties to give evidence and cross-examine the evidence of others in a formal and “courtroom “- like setting. The Inspector will make a site visit and may either issue a decision letter or report to the Secretary of State for final decision.

At any Inquiry the local authority will seek to defend their decision that is being appealed against. The local community does have an important role to play. If you initially objected to the application you will be invited to support the local authority either in writing to the Inspector or by addressing the Hearing or Public Inquiry. This process could take a considerable number of months to complete.

If you wish either to object or to support the applicant you can put your view in writing to the Inspector and ask to attend the inquiry to give evidence. If you do speak you are likely to be questioned about your evidence, but the Inquiry is not intended to be intimidating. You would be required to just state your case simply and clearly.

Checking planning applications on the Middlesbrough Council website

From your computer enter the following weblink into your Internet browser bar http://www.middlesbrough.gov.uk/?articleid=2276

This will bring you to the Council planning ‘Search and Track’ page. Go down to the ‘Parish’ box, click on the arrow and select your Parish from the pull-down menu. Click on the ‘Search’ button. The new page will display planning applications for that particular Parish going back to the start of the computerised planning application process. There are 20 applications per page, click ‘Next’ to view previous pages.

To examine the milestone dates (consultation period and expected date for the Planning Committee meeting) and documents of a particular application click on the ‘Reference’ number. If you wish to contact the relevant planning officer for further information click on the ‘Officer’ button for the telephone number and e-mail address.

This page also allows you to comment or submit an objection electronically on the application, click on ‘Comment on this application’ and complete the electronic form.