Section 106 Agreements get a rethink

‘The Community Infrastructure Levy is the Government’s preferred mechanism for collecting developer contributions to infrastructure’ as

part of a planning permission but ‘planning obligations entered into under Section 106 of the Town and Country Planning Act 1990 (“Section 106 agreements”) continue to play an important role in securing mitigation to make proposed developments acceptable’. These quotes come from the Department for Communities and Local Government’s consultation, Section 106 Planning Obligations – speeding up negotiations.

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The key issue in the consultation proposes that topics that would lie within a Section 106 should be addressed early on and negotiations should run concurrently with the standard 8 to 13 weeks for a planning application rather than being left until after the planning committee has made a decision.

Getting your head around Section 106 Agreements is important to our work as landscape architects; they can be vital in securing site-related public open space, green infrastructure and the long term management of a landscape. If a developer wants a reputation for good quality development as an aid to future sales then what better than achieving a well-laid-out and maintained public open space

that potential buyers can visit.

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Getting this on the ground however can be a painful process. The longest negotiation we had for a Section 106 for a public open space was two years. The lawyers finally resolved everything, the agreement Wholesale NFL Jerseys was signed but then someone realised that the mortgage lender of one of the parties had not been included and the document had to be redrafted. Work started, the recession came and the site plunged in value. The developer was committed to supplying the open space up front and had to complete it without the benefit of follow-on sales. This was all planned in a buoyant and optimistic market that did not work out as anticipated. Without the two year delay the outcome may have different.

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Phasing can also be complicated. I remember spending a day working out the Section 106 sequence of implementation on a housing site for just a 100 houses which the client had given up on and passed to us to unravel. There were three areas of open space and each had to be ‘implemented’ (but not ‘grown in’ so the public could use it) before a certain number of houses were occupied. Further clauses set out which open spaces had to be available for public use before the next set of houses were occupied. In addition there was a fenced-off area for nature conservation benefit and this had a prescriptive list of actions at specific times of the year which had baffled our client. Needless to say this was all in incomprehensible lawyer-speak but by the end of the day we had a table with a programme of actions which

both the developer and the local authority planners appreciated.

Bringing the process forward increases costs for the developer up front but if the process is simplified and streamlined as is proposed perhaps it will save the developers money in the long run.

There is quite a bit more to this consultation than the timing issues so if you work in this area do check it out. You have until the 19th March to respond.

Existing arrangements for Section 106 Agreements: http://www.pas.gov.uk/3-community-infrastructure-levy-cil/-/journal_content/56/332612/4090701/ARTICLE

Section 106 Consultation document: