Planning Obligations v’s Planning Conditions
Planning House are here to unravel the red tape of planning and in this article we provide a basic overview of the difference between planning conditions and planning obligations.
What is a Planning Obligation?
A planning obligation is a tool, in the form of a legal agreement, for placing restrictions on developers, often requiring them to minimise the impact on the local community and to carry out tasks which will provide community benefits, and can include the payment of sums of money.
Planning obligations should only be used for a development where it is not possible to address unacceptable impacts through a planning condition.
The key ways to secure developer obligations for a proposed development are via a section 106 agreement (s106 agreement) or a Unilateral Undertaking.
A Section 106 (s106) Agreements is a legal agreements between Local Authorities, developers and any other person or company who has an interest in the site the agreement would relate to.
The name section 106 comes from the Town and Country Planning Act 1990, referring to the section of the Act which refers to planning obligations.
A unilateral undertaking is a simplified version of a s106 planning agreement, which is relatively quick and straightforward to complete, and is entered into by the landowner and any other party with a legal interest in the development site. They can assist in ensuring that planning permissions are granted speedily, which benefits both applicants and the Council.
Our Practical Guide on Planning Obligations provides further details on Planning Obligations.
What are Planning Conditions?
Rather than refusing a planning application, a local planning authority (LPA) may grant permission subject to conditions, most approvals have conditions relating to the time frame to start a development and materials to be used, but often they have more and can vary between LPAs.
When are they used?
Planning conditions should be kept to a minimum and only imposed where they are:
- necessary; without the condition should the application be refused;
- relevant to planning; does the condition relate to planning objectives and is it within the scope of the permission to which it is attached;
- to the development to be permitted; Does the condition fairly and reasonably relates to the development to be permitted?
- enforceable; would it be practicably possible to enforce the condition;
- precise; is the condition clear to the applicant and others on what is required; and
- reasonable in all other respect; is the condition reasonable.
Section 106 agreements are drafted when it is considered that a development will have impacts that cannot be managed by means of conditions attached to a planning decision.
A s106 Agreement is entered into where all of the following tests set out in the National Planning Policy Framework are met:
- The planning obligation is necessary to make a development acceptable in planning terms;
- The planning obligation is directly related to the development; and
- The planning obligation is fairly and reasonably related in scale and kind to a development.
The land itself, rather than the person or organisation that develops the land, is bound by a s106 Agreement, something any future owners will need to take into account.
What do they cover?
Planning Obligations (s106 agreement) 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.
The s106 will vary depending on the nature of the development and based on the needs of the local authority. The most common obligations include:-
- Public Open Space;
- Affordable Housing;
- Environmental Improvements.
Planning Conditions should be adhered to and sometimes include a requirement for information to be submitted before development is started. Conditions can regulate how works should be undertaken or require specific things to be carried out. Conditions can also control or restrict future development or uses.
Planning Conditions can also control or restrict future development or uses.
Can you change / modify a s106 agreement or conditions?
Yes – s106 agreements can be renegotiated after it’s been completed. The agreement can be modified or discharged either by agreement with the ‘appropriate authority’ (i.e the local authority) (if the planning obligation is less than 5 years old) or by applying to the enforcing local authority after 5 years from the planning obligation being set out (or if it predates April 2010).
However, you need to be able to justify why the agreement needs to be modified. For instance can prove that the costs have increased significantly? Evidence usually in the form of a financial viability and evidence such as invoices and quotes to support the increase in costs for the original budgeted costs would be required to be submitted. Our Practical Guide to Modification of s106 Planning Obligation Agreement covers the process in more detail.
In terms of Conditions if you don’t think that a condition imposed meets the 6 tests you can apply to the LPA to modify/remove the condition, the application fee for this process is £234. This application is called a s73 application, If an application is refused you do have the right to appeal the decision, regardless of the outcome of the appeal the original permission remains valid and it is only the condition which is removed or modified.
There is a mechanism to appeal the imposition of a condition on the initial application without going through the process to remove or modify the condition; however, if you appeal at that stage there is a risk as the whole application is reconsidered and could be refused in entirety. Our blog How do you Amend a Planning Permission – s96a v’s s73 provides further details.
How can Planning House Help?
If you are in need of assistance please feel free to CONTACT US to discuss your situation.
If you’re not sure we’re the right fit for you then take a look at our blog on When to Hire a Town Planner and our download on Guide to how to choose a Town Planner to help you find a town planner that’s right for you.
Take a look at our eBook: CIL & s106 – which gives the basics on CIL (Community Infrastructure Levy) and developments which may trigger the need for additional works or financial contribution (via s106 agreement). It’s better to know in advance what the financial implications might be.
Planning House have secured approval for the modification of a previously agreed s106 legal agreement for residential development where the spiraling costs associated with archaeological works rendered the scheme unviable if the s106 agreement was not discharged. Planning Success – Modification of s106 Legal Agreement. Planning Success- On Modification Planning Conditions