Planning Obligations SPD 2020
3. MANAGING PLANNING OBLIGATIONS
3.1 This section sets out the guidance for applicants for planning permission, infrastructure providers and community groups about how Harborough District Council manages the Planning Obligation process - from making policy, considering applications for planning permission, making and amending S106 obligations as needed, and monitoring the delivery of planning obligations.
The Development Plan – the basis for considering obligations
3.2 Alongside the Harborough District Council Planning Obligations SPD, reference should be made to the adopted development plan, national planning policy and national planning practice guidance to assist in understanding what may make a new development acceptable in planning terms.
3.3 The Harborough Local Plan 2011 – 2031 as well as the 'made' Neighbourhood Plans, available at the following link: https://www.harborough.gov.uk/neighbourhood-planning are key policy documents.
Policy IN1 – Infrastructure Provision seeks to secure appropriate infrastructure and part of the Local Plan, includes an Infrastructure Delivery Plan (IDP), which sets out the framework for what types of infrastructure are needed to support development levels specified in the Local Plan.
3.4 The Local Plan was subjected to a viability assessment to confirm that its proposals as a whole are achievable and deliverable. This viability assessment took into account the likely levels of developer contributions and any other sources of potential infrastructure funding.
3.5 Government guidance on viability was updated in September 2019. The aim of the guidance was to ensure that viability is considered upfront, as part of the plan-making process. It also clarified that the costs of complying with planning policies should be reflected in the land value. Previously some applicants sought to make a viability assessment on a case by case basis, they are now required to demonstrate why any viability assessment at the planning application stage is justified.
3.6 As set out in the Council's adopted Statement of Community Involvement (S.C.I.) (March 2020), developers are encouraged to discuss potential proposals/applications with the Council at an early stage for example prior to submission of an application.
3.7 At the pre-application stage officers of the Council will advise and consider the potential impacts on infrastructure and the need for planning obligations which would be necessary to make development acceptable. Officers of the Council will decide, based on the scale, size and nature of the proposal, if specific infrastructure providers should be invited to advise at the pre-application stage.
3.8 The Council also encourages developers of all potential major residential, employment and mixed use schemes to conduct pre-application consultation with a broad range of service providers and to contact local organisations and identify what local infrastructure may be needed to support new development. The Parish Liaison Officer at Harborough District Council, maintains a list of appropriate contacts at parish level and can assist further.
Submitted Planning Applications
3.9 Planning applications should be accompanied by details to identify the likely impacts of a new development proposal on local infrastructure/services. Developers should give consideration to the range of planning obligations, which are necessary and provide them in the supporting details.
3.10 Once a planning application is received, the authority will notify specified bodies, including infrastructure and service providers where there may be an impact on the service they provide.
3.11 The infrastructure provider will be directed to information concerning the application located on the Council's website and asked to respond or comment on the application within 21 days.
3.12 Infrastructure providers /service areas may include:
Relating to functions for which Harborough District Council is the responsible authority:
- Affordable Housing
- Community and Sports Facilities;
- Open Space and Recreation;
Relating to functions for which Leicestershire County Council is the responsible authority:
- Adult Social Care and Health;
- Waste Management;
- Economic Development;
- Highways and Transportation;
- Library Services; and
- Sports and Recreation Facilities.
Relating to functions that are the responsibility of the following other authorities:
- NHS England;
- Leicestershire Constabulary;
- Leicestershire Fire and Rescue Service;
- Water and Sewage Service Providers;
- Public Transport Operators;
- Utility Companies;
- Environment Agency;
- Highways England; and
- Natural England.
3.13 Infrastructure providers who identify that a planning obligation is required should set this out clearly in a formal response. Harborough District Council will decide if the obligations request meets the CIL Tests.
3.14 It is also important to understand the three statutory CIL tests, mean S106 developer contributions can only be used to enable the provision of additional or renewed community infrastructure to create additional capacity in order to satisfy the demands arising from that development and to make it acceptable. It is also important to realise that S106 developer contributions cannot be used to put right existing infrastructure deficits.
3.15 Large commercial and employment generating developments may increase demands on infrastructure, therefore if there is a demonstrated need directly related to the development, a contribution will be sought. The types of need may often be related to transportation, such as cycle ways and footpaths, but may extend to other types of contribution [e.g. economic growth/local employment/skills training] dependent on the nature of the development and what is required to make an application acceptable.
Determining planning applications
3.16 In determining planning applications, Harborough District Council as the local planning authority has responsibility for deciding which planning obligations are necessary to ensure developments are acceptable. In executing this responsibility, the District Council will take account of adopted guidance and responses from all service providers together with any responses from Town and Parish Councils and the views of Ward Councillors.
3.17 Planning applications which require a planning obligation will not be determined unless there is a draft Heads of Terms for S106 Obligations agreed with the applicant in writing, placed on the public planning register (the electronic database of planning applications and associated correspondence also known as the Planning Portal) and referred to in the associated case officer report, which sets out:
- all specific types of infrastructure/projects to be delivered;
- the contribution to any infrastructure required (where this is agreed as a financial payment); and
- the timing of payment or delivery of the necessary infrastructure in relation to development.
3.18 This document covers the principal areas where contributions may be sought, but should not be regarded as exhaustive. The impact of planning proposals on all types of services or infrastructure will be examined on a case by case basis when applications are submitted and obligations considered in order to ensure development is acceptable.
Finalising the Section 106 Planning Agreement
3.19 When planning obligations are necessary, the applicant will submit a draft S106 planning agreement to the Council for consideration as early as possible.
3.20 The Council's Legal services team will assist in reviewing and finalising the S106 agreement – on receipt of full instructions from the relevant development Management Case Officer, in liaison with the legal representatives of the Applicant and any other party to the Agreement.
3.21 The initial draft agreement will be placed on the Planning Register by the Case Officer.
3.22 Subsequent draft versions of the agreement (version controlled, redacted as needed) will be placed on the Planning Register by the Case Officer following receipt from Legal Services.
3.23 Legal Services will negotiate the clauses and redraft the S106 as necessary in liaison with the legal representatives of interested parties, until a final agreement is reached.
3.24 All Harborough District Councillors will be notified via the Member Information Service prior to the final agreement being executed by the Council.
3.25 The final signed version of the agreement will be placed on the Planning Register by the relevant Development Management Case Officer.
Variations to planning obligations
3.26 An application can be made to vary or remove a planning obligation at any time on the basis of a material alteration or change in circumstances since the application was originally determined. Infrastructure providers will be notified and consulted where a change relates to their obligation/s. Councillors for the ward in which the application is made will be consulted as will parish/town councils, as necessary.
3.27 If the application was originally determined by the Planning Committee rather than being delegated to officers, the Planning Committee will usually determine the application to vary the obligation.
Monitoring the implementation of planning obligations
3.28 Whether a planning obligation requires a developer to undertake some works on site or make a financial contribution to off site infrastructure, it is important that there is confidence that the planning obligation is delivered. The Council's Planning obligations officer monitors development and ensures the required obligation is met.
3.29 Invoices are issued by the Council at defined stages of development as stated in a S106 planning agreement. The Council will notify those HDC services with responsibility for delivery of the relevant infrastructure, when a planning obligation payment is received and will record the date when the planning obligation/s has to be spent.
3.30 The Council will monitor the delivery of the infrastructure improvement for which the planning obligation has been obtained. The Planning Obligations Officer will be informed from the relevant Harborough District Council Service manager or other partner organisations when and for what purpose the planning obligation funding has been used.
3.31 Partner organisations for example, the Clinical Commissioning Group (C.C.G.) or Police, may be required to sign an indemnity agreement (see Annex 2) and ensure contributions are spent in accordance with the S106 Agreement.
3.32 Monitoring and subsequent reporting will enable the local community to know the infrastructure needed to make development acceptable has been delivered. It is also important to be able to assure developers that the obligation/s they made are spent in accordance with the purposes contained within the S106 agreement.
3.33 The Councils S106 database provides a clear and transparent record of obligations required, paid and the use of the contributions in accord with the S106 Planning Agreement.
Infrastructure Funding Statement
3.34 A requirement of the CIL Regulations means Councils are required to produce an annual Infrastructure Funding Statement (IFS). It is a summary of financial contributions which the Council has secured, through Section 106 agreements and any other infrastructure funding e.g. CIL (where applicable), from new development. The first IFS is due by 31st December 2020 and will be published on the Council website.
The "End to End" Process
3.35 The involvement of the Council in planning obligations extends from making planning policy concerning development and infrastructure through to monitoring and reporting on the implementation of planning obligations. Monitoring of development and infrastructure provision is a factor in reviewing policy, so the process is circular. This "end to end" process is shown on the flow chart presented in Annex 4, which describes the key points at which District Councillors and other interested parties are involved in the process.