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Planning Obligations

 
   

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Background

The purpose of this information is to help you to understand what is meant by Planning Obligations as well as to explain Gateshead Council's approach to them. It will also provide you with some useful guidance if you are asked to enter into them as part of a development.

  • What are Planning Obligations?
  • Is my application liable for Planning Obligations?
  • How does Gateshead Council approach Planning Obligations and what are the levels and types of contributions required?
  • How are Planning Obligations secured and what are the options available to developers required to enter into them?
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What are Planning Obligations?

A Planning Obligation is a legally binding commitment which is made under Section 106 of the Town and Country Planning Act 1990. Government guidance on the use of Planning Obligations is contained in Circular 05/2005 and the Community Infrastructure Regulations 2010 (as amended) (CIL).

New development often creates a need for additional infrastructure or improved community services and facilities, without which there could be a detrimental effect on local amenity and the quality of the environment. Planning Obligations are a means of securing these measures where an planning application fails to.

The creation of new dwellings place additional demand on existing community facilities. To offset these additional demands, the Council’s policy is to seek provision of additional community facilities or a financial contribution towards the provision of recreational facilities serving the locality of your development. This will include facilities such as public open space and outdoor play equipment.

 The amount of the contribution will be dependant on the size and scale of the development i.e. number of bedrooms and number of units.

A Planning Obligation will take the form of a legal agreement secured pursuant to Section 106 of the Town and Country Planning Act 1990 (as amended)|. In the case of bi-lateral (more than one party)  Agreements, these are negotiated between the local planning authority and the applicant or developer as well as any other parties that may have an interest in the land (e.g. mortgagee). It is also possible for Planning Obligations to be entered into unilaterally by the persons with an interest in the land, this is known as a Unilateral Undertaking.

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What can Planning Obligations cover?

Planning Obligations will vary in accordance with the nature of the development and will be based upon the needs of the area in which the development would be located. The most common obligations are:-

  • A financial contribution towards providing new or improved Public Open Space and/or children’s play areas.
  • Affordable Housing.
  • Public Art either within the site or in the nearby area.
  • Highways works required as a result of the development.
  • A contribution towards Sustainable Transport Infrastructure.
  • A requirement to do something or not to do something (for example to allow only people in farming employment to live in a house).

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. The agreement must be completed prior to the planning decision notice being issued.

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Is my application liable for a Planning Obligation?

There are no hard and fast rules about the size and type of development that would attract a planning obligation as this would depend on the type of development and the area in which it is located.  If you are unsure as to whether a proposed development you may be considering is likely to require  any planning obligations you are advised to seek pre-application advice| from the Development Control Unit before purchasing land or property for development. 

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How does Gateshead Council approach Planning Obligations and what are the levels and types of contributions required?

Under Policies PO1 And PO2 of the Saved Unitary Development Plan you may be required to enter into a Planning Obligation under Section 106 of the Town and Country Planning Act 1990 when applying for planning permission.

It is vital that you review the policies contained within the Saved Unitary Development Plan as this will give you a good idea of what obligations may be required. It is recommended that you undertake a pre-application discussion with a planning officer.

We have produced a |guide to our pre application process|. This process will enable you 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 instruct the Legal Team who will draft the obligations for the development.

This process will enable you 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 instruct the Legal Team who will draft the obligations for the development.

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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. It is strongly recommended that you also take advice from your own solicitor before entering into the S106 Agreement. The payment of the Council legal fees would usually be paid at the conclusion of the agreement.

Please Note: You will be expected to complete any required Planning Obligation agreement along with the relevant fee by our statutory 8/13 week period . 

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When do the Planning Obligations have to be fulfilled?

The legal agreement will state quite clearly when the planning obligations have to be fulfilled. It is usual for the requirements of the obligation to be completed prior to any building works commencing.

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What happens if it is only a small development?

Even where there is a development of just 1or 2 dwellings a sum may be required for each dwelling for Public Open Space or Play Area contribution. The sum for each dwelling will be based on the number of bedrooms. In this instance, you have the option of completing a Unilateral Undertaking which is a simpler form of planning obligation than a S106 Legal Agreement.  The main difference is that with Unilateral Undertakings only the applicant commits legally to the undertaking without any obligation on the Council. 

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Guidance Notes for Completing a Unilateral Undertaking

A template of a Unilateral Undertaking has been made available for you to use and although you are under no obligation to do so we recommend that you use it in order to avoid any unnecessary delays in the planning application process. This can be found below.

Guidance note for Planning Obligations|

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How are Planning Obligations secured and what are the options available to developers required to enter into them?

All development types identified either at the pre application stage or identified in the Tyne and Wear Validation checklist as having potential for a planning obligation, will need to ensure that the following information is provided with the planning application. Failure to submit this information may mean that your application will be treated as invalid and consideration of the application will not commence:

  • Confirmation that you are willing to pay The Councils legal costs
  • Confirmation and details of any solicitors that will be acting on your behalf and on behalf of any other interested parties ( eg Mortgagees)
  • Submission of full, original, and up-to-date Land Registry title documentation that covers the entire application site OR in the case of unregistered land a Certificate of Title duly completed by a solicitor.

The planning officer will confirm whether an obligation is necessary after considering the proposal and consulting other officers within the council. Shortly after the statutory consultation period has expired (21 days after validation) you will be notified in of the specific planning obligations applicable to your application. We then would instruct our Legal team to prepare the obligation. In order to determine applications within the Government's prescribed periods, the securing of planning obligations and developer contributions cannot be a cause of delay. Developers are required to ensure that any obligations or contributions applied by the Council are resolved within the statutory time period advised by the Council, usually 8 or 13 weeks from the date the application is made valid.

The Council's Legal Department will:

  • Produce a draft agreement and send a copy to all parties and/or their solicitors
  • Liaise with all parties to ensure that the terms of the agreement are agreed
  • Ensure all necessary parties sign the agreement
  • Ensure Gateshead Council sign and complete the agreement once all legal costs have been met.
  • Register the Agreement as a Local Land Charge

Summary of options for securing planning obligations:

There are two methods of securing planning obligations. Guidance notes for each of these methods are available using the links below the following table. This table summarises these methods and highlights the main differences between them:

 

Section 106 Agreement

Unilateral Undertaking

Has to be completed before 8/13 week deadline.

Yes

Yes

Secures financial planning obligations

Yes

Yes

Secures non financial obligations and/or any restrictions, stipulations, covenants that are NOT binding on Gateshead Council

Yes

Yes

Secures non financial planning obligations (i.e. affordable housing) and/or any restrictions, stipulations, covenants that are binding on Gateshead Council

Yes

No

Defers payment of financial obligations until prior to commencement of development

Yes

Yes

Council Solicitors draft the agreement

Yes

Yes

Legal Costs exclusive of VAT

£631.20-£1262.40

£315.60



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How are Planning Obligations Monitored?

The Council will monitor planning obligations to ensure compliance by all parties with any obligations, covenants, restrictions, and stipulations contained within any agreement.

Planning Obligations secured by way of a Section 106 agreement or Unilateral Undertaking are binding on the land and are therefore enforceable against all successors in title. The land charge will remain active until all of the planning obligations have been satisfied or the planning permission for which the Section 106 agreement or Unilateral Undertaking relates to has expired. Should you sell the site prior to commencing development, you should notify the Council so you are no longer pursued for the obligationas the obligations will then become the responsibility of the purchaser.

Financial Planning Obligations will be invested by the Council in relevant local schemes as identified by the Agreement and S106 monitoring group. All financial contributions are monitored closely to ensure their spending is wholly in accordance with the terms set out within the agreement and that allocations of contributions are appropriate.

Should you require any further information with regards to existing Planning Obligations please contact the Development Management Team.

Contact Us

 

Development Management
Civic Centre
Regent Street
Gateshead
NE8 1HH

Tel: 0191 433 3416
Fax: 0191 477 5855
Email: enquiriesdevcon@gateshead.gov.uk|

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