Section 106 Guide
What is a Section 106 Agreement?
A Section 106 Agreement is a planning obligation entered into under the Town and Country Planning Act 1990 (as amended) which allows a Local Planning Authority (LPA) to enter into an agreement with any person interested in a piece of land/building in order to regularise or restrict the development or use of the site.
Why does the LPA impose a Section 106 Agreement?
In order to regularise or restrict the type of development or use of the proposed site. This is often a set of conditions the person with interest in said land must agree with in order to receive planning permission. The LPA imposes this planning obligation in order to restrict the development or use of the land, to require that specific operations are carried out in, on, under or over the land, to require the land to be used in a specific way, or to require a sum to be paid to the local authority. The most common reason is to control the occupancy and/or value of a property or properties on land, or secure financial payments required as part of any planning consent.
When can a Section 106 Agreement be sought by the LPA?
Planning obligations were designed in order to assist the LPA in mitigating the impact of any development, and to provide controls that could not be secured through the use of conditions. Some proposals may only receive approval subject to a Section 106 approval. In order to make the development acceptable, the obligations must be necessary in order for the development to be acceptable in planning terms, directly related to the proposed development, and be fairly and reasonably related in terms of scale and type of development.
What can a Section 106 Agreement consist of?
A Section 106 Agreement may be unconditional or subject to conditions depending on the LPA’s stance on the proposal. The LPA may also impose a time limited restriction or requirement or apply it as an indefinite restriction. If the LPA requires a sum to be paid this too can be decided during agreement the amount and over what period of time the sum must be paid.
Is a Section 106 Agreement enforceable?
Yes. If you do not follow the requirements set by the agreement then the LPA may take enforcement action upon you.
Do I have to agree to a Section 106?
You do not have to agree to the imposed obligations, however, this may lead to a refusal of planning permission. This can of course be taken to appeal, although the strength of the case will depend on the reasonability of the obligation and the need for it.
Can you negotiate a Section 106 Agreement?
Yes. All planning obligations are flexible in a sense, depending on the type of development in discussion and the area. They are designed to ensure that planning permission responds to the specific scheme’s circumstances. Negotiation should take place during the consideration of the application and prior to signing an agreement, as it is more difficult to amend afterwards.
Can I discharge/remove a Section 106 Agreement?
Yes. In the event that the Section 106 Agreement “no longer serves a useful purpose” you can apply to the LPA to remove the obligation. However, within the first 5 years of its life there is no right to appeal against a refusal to do so.
Please see some of our successful removal/discharge of Section 106 Agreements stories:-
https://www.owendevenport.co.uk/town-planning-case-studies/section-106-discharged-in-national-park