Section 106 Legal Agreements

On 11 December 2007, following the issuing of the Inspector's Binding Report, the Council resolved that the Tendring District Local Plan be immediately adopted. This has a significant effect for all Planning Applications for new developments in respect of S106 Legal Agreements.

What this means for S106 Legal Agreements

With immediate effect, a S106 Legal Agreement will be required for every application* for the development of new dwellings and possibly for other forms of development.
*excludes applications for extensions, property alterations, conservatories etc. If you are unsure, please call the Legal Agreements Manager on 01255 686109.

What is a Section 106 Legal Agreement?

A Section 106 Legal Agreement is an agreement drawn in accordance with S106 of the Town and Country Planning Act 1990 (as amended) and within the guidance laid down by Government Circular 05/2005: Planning Obligations. The agreement is entered into by the owner(s) and any party who has an interest in the land (e.g. mortgagee) to complete Planning Obligations as a result of the development being undertaken.

What can Planning Obligations cover?

The Planning Obligations will vary in accordance with the nature of the development and will be based upon the needs of the District following the completion of it. The most common obligations are:-
• A Financial Contribution towards providing new or improved existing Public Open Space.
• On site provision of Public Open Space and maintenance payment (on developments exceeding 1.5 hectares.
• On site provision of Affordable Housing (on developments exceeding 15 dwellings within towns and above 5 dwellings in Rural Settlements with a population below 3000 people)
• Financial Contribution for Education
• Highways Works
• Town Centre Improvements
• Harwich Masterplan
This list is not exhaustive and it must be noted that the Planning Obligations required will be considered and requested when your application is being determined. Please also note that any financial obligations will be index linked to an index quoted in the Legal Agreement. The Agreement must be completed prior to the planning decision notice being issued.

How are the Planning Obligations Agreed?

It is vital that all applicants review the policies contained within the Tendring District Local Plan (2007) and Supplementary Planning Documents (SPD) as this will give them a good idea of the obligations required. Where the proposed development is of a significant size, it is recommended that the applicant undertakes pre-application discussions with a planning officer, particularly for major applications (where the application is for 10 dwellings or more or for sites exceeding 1.5 hectares). This will enable them to give an overview of the development being proposed and the planning officer can raise any points that may need more clarification. It is also the starting point for establishing planning obligations. Once negotiations have taken place, the officer will refer the proposed obligations to the Development Team who will determine the obligations for the development.
The Development Team consider the obligations for major applications and is made up of Senior Managers from all Services who are authorised to make such decisions. The Development Team meets fortnightly and will consider major applications as soon as possible after negotiations have been entered into so that the obligations can be agreed at an early stage.
Please note that the applicant's agreement to the Planning Obligation(s) does not indicate that planning permission will be granted.

Who prepares the Section 106 Legal Agreement?

The S106 Legal Agreement will be prepared by the Council's Solicitors and the applicants will be required to pay the solicitor's fees excluding VAT. Please note that this includes any solicitor's fees incurred even if permission is refused. It is strongly recommended that you also take advice from your own solicitors before entering into the S106 Agreement.

When do the Planning Obligations have to be completed?

The Legal Agreement will show quite clearly when the Planning Obligations have to be fulfilled. Many of these will need to be completed prior to any building works being commenced.

How is this Monitored?

The Council's Legal Agreements Manager has responsibility for monitoring the completion of all Planning Obligations within S106 Legal Agreements. He will contact you upon completion of the Agreement to provide you with a point of contact. The Agreement will require you to notify the Council in advance of commencing any works. Until that notification is received, the Legal Agreements Manager will occasionally contact you to gain an approximate date for the commencement.
Once notification of commencement has been received, where a financial contribution has been agreed, the Legal Agreements Manager will advise you of the sum due after indexation has been added. Once payment has been received, he will also monitor the Council's spending of this money to ensure that it is used for the purpose for which it has been provided.
Should you sell the site prior to commencing development, you should notify the Legal Agreements Manager providing details of the purchaser's name, address and telephone number as the obligations will then become the responsibility of the purchaser.

What happens if it is only a small development?

Where there is a development of less than 10 dwellings, a sum will be required for each dwelling for a Public Open Space Contribution. The sum for each dwelling will based on the number of bedrooms. In this instance, you have the option of completing a Unilateral Undertaking instead of a full S106 Legal Agreement. These are available from this website (see below) together with guidance notes for their completion. Alternatively, copies of both are available from the Council Offices, Weeley.
There may also be occasions where other obligations are requested, for example a development of more than 5 residential units in a rural location which will require 40% to be affordable units. In this instance a legal agreement will be required.

Besides the Council's solicitors fees, what other fees are payable?

Normal planning application fees are still payable. In addition, the Council will charge Monitoring Fees and details are available via the following link. Please note that the Monitoring Fees are payable at the time the S106 Legal Agreement is signed. Where Monitoring Fees have been paid and permission is refused Monitoring Fees will be refunded once the period during which an applicant can appeal has expired with no appeal being made.

Monitoring Fees examples

Who can I contact at Tendring District Council

You can refer any question firstly to the Planning Service on 01255 686161 or for any questions about S106 Legal Agreements to the Legal Agreements Manager 01255 686109.

Guidance notes for Unilateral Undertakings

Certificate of title

Unilateral Undertaking form for FULL planning application

Unilateral Undertaking form for OUTLINE planning application

Some of the above links will open adobe acrobat pdf documents and you will need the free adobe acrobat reader software to open them