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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
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