Planning Obligation Negotiation
Planning legislation allows Local Planning Authorities (LPA) to consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
Planning obligations should only be sought where they meet all of the following tests:
• Necessary to make the development acceptable in planning terms;
• Directly related to development; and,
• Fairly and reasonably related in scale and kind to the development.
Planning obligations typically relate to matters such as:
• Affordable housing requirements;
• Requirement for contributions to education and schooling costs;
• Requirement for contributions to healthcare provision;
• Provision of public open space and children’s play equipment; and,
• Provision of public buildings e.g. a new library.
Many LPAs are now introducing the Community Infrastructure Levy (CIL) which is a payment made on a price per square metre of new development (there are exemptions). The CIL will cover some of the payments which may previously have been the subject of planning obligations yet the amounts vary between different types of development and across LPA boundaries. Thus the CIL payable in one district will differ to that payable in a different local authority area. Affordable housing obligations will still apply alongside CIL.
The contribution demands from LPAs can be considerable. Furthermore the policies and guidance on which a Council may rely when requesting planning obligations are complex and expert advice should always be sought so as to minimise the impact. Failure to do this can have a significant effect on land value. We undertake the following:
• Establish the likely planning obligations prior to any application submission;
• Advise on the status of the LPA’s community infrastructure levy;
• Consider potential planning conditions prior to submission to ease the determination process by addressing issues “up-front”;
• Review relevant local planning policies and supplementary planning documents to establish whether potential obligations are consistent with national policy;
• Prepare section 106 heads of terms;
• Assess whether draft planning obligations meet “the tests” and reflects the viability of a scheme proposal;
• Work with solicitors to ensure the correct wording, timing and extent of obligations are included; and,
• Negotiate reductions in the obligations package if one or more of “the tests” is not met, or if it would render a scheme unviable.