S106 – Where we are- current context Gilian Macinnes Date: March 2015www.pas.gov.uk

s106 obligations can: restrict the development or use of the land in any specified way require specified operations or activities to be carried out in, on, under or over the land require the land to be used in any specified way; or require a sum or sums to be paid to the authority (or, to the Greater London Authority) on a specified date or dates or periodically.

S106 can: be subject to conditions, specify restrictions definitely or indefinitely, And in terms of payments the timing of these can be specified in the obligation. If the s106 is not complied with, it is enforceable against the person that entered into the obligation and any subsequent owner. The s106 can be enforced by injunction.

S106 Obligations S106 is not replaced by CIL Old reality – pre 2008 New reality-post 2008:  Times have changed – viability  Times have changed – legislation Newest reality – April 2015

S106 – legal tests- CIL regs If the development is capable of being charged CIL, the S106 obligation must meet these legal tests: NECESSARY to make the development acceptable in planning terms DIRECTLY RELATED to the development FAIRLY AND REASONABLY related in kind and scale to the development

S106 Policy tests - NPPF 204. Planning obligations should only be sought where they meet all of the following tests: 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."

Do your s 106 obligations currently meet these tests? Most basic tariffs are already contrary to the regulations (they do not meet the legal tests) If they don’t meet the regulations you are in danger of legal challenge to your decision making. Time is running out…. To get a CIL in place

S106 obligations Site specific mitigation measures For pooled contributions up to April 2015/CIL adoption, then for up to 5 developments where infrastructure not funded by CIL

Chief planner: councils 'must face consequences' of lack of CIL progress Local planning authorities that fail to get a Community Infrastructure Levy (CIL) charging schedule in place by next spring must 'face the consequences', the government's chief planner has said. June DCLG chief planner Steve Quartermain

Delivery and viability of development "Where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled.“ Paragraph 205- NPPF

Renegotiation of s106 A Amended Regulation (Feb 2013) to set out a procedure for amending any planning obligations entered into between 28 March 2008 and before 6 April Section 106A of the Town and Country Planning Act 1990 Section 106A of the Town and Country Planning Act 1990 where the s106 - "no longer serve a useful purpose" or "continues to serve a useful purpose equally well“ Sunset- April 2015

Renegotiation of s 106BA Changes in the Growth and Infrastructure Act that require a council to renegotiate previously agreed affordable housing levels in a S106, and change the affordable housing requirement Section 106BA of the 1990 Act Section 106BA of the 1990 Act viability of affordable housing requirements only not reopen any other planning policy considerations or review the merits of the permitted scheme

Appeals Under Section 106B of the Town and Country Planning Act 1990 Under section 106 BC- Appeal on affordable housing viability – revised level of Affordable housing for 3 years

DCLG s106BA and BC Guidance Overview of what evidence is required.

The Minister of State, Department for Communities and Local Government (Brandon Lewis): Affordable housing and tariff changes

Affordable Housing and tariff- threshold 10-units or less, and which have a maximum combined gross floor space of 1,000 square metres, affordable housing and tariff style contributions should not be sought. This will also apply to all residential annexes and extensions. Brandon Lewis, The Minister of State, Department for Communities and Local Government (28/11/14)

Rural designations In designated rural areas- authorities may choose to implement a lower threshold of 5-units or less, beneath which affordable housing and tariff style contributions should not be sought. If the 5-unit threshold is implemented, payment between six to ten units should be sought as a cash payment only and be commuted until after completion of units within the development. Brandon Lewis, The Minister of State, Department for Communities and Local Government (28/11/14)

No change- Not applicable to rural exception sites Affordable housing and tariff style contributions should not be sought in relation to residential annexes and extensions. Brandon Lewis, The Minister of State, Department for Communities and Local Government (28/11/14)

Vacant buildings “ A financial credit, equivalent to the existing gross floor space of any vacant buildings brought back into any lawful use or demolished for re-development, should be deducted from the calculation of any affordable housing contributions sought from relevant development schemes. “ Does not apply to vacant buildings which have been abandoned. Brandon Lewis, The Minister of State, Department for Communities and Local Government (28/11/14)

Autumn Budget Statement and February Consultation 1.141…taking steps to speed up section 106 negotiations, including revised guidance, consulting on a faster process for reaching agreement, considering how timescales for agreement could be introduced, and improving transparency on the use of section 106 funds; … Page 42 (4/12/14) Consultation -Section 106 Planning Obligations – speeding up negotiations Student accommodation and affordable housing contributions - February anning_Obligations___speeding_up_negotiations.pdf