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 a new dwellings and possibly
for other forms of development.
*excludes
applications for extensions, property alterations, conservatories
etc. If you are unsure, please call the Planning helpline on 01255
686161.
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
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 Commitments 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 as this will give them
a good idea of what obligations may be required. Where the proposed
development is of a significant size, it is recommended that the
applicant undertakes pre-application meetings with a planning
officer. 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 is made of Senior Managers from all
Services who are authorised to make such decisions. The Development
Team meets fortnightly and will consider every major application 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 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 15 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 and the Town Hall,
Clacton.
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 in full.
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
FULL APPLICATION - Completion
Guide
Unilateral Undertaking form for OUTLINE planning
application
OUTLINE APPLICATION - Completion
Guide
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