Planning Obligations

Until further notice due to the Coronavirus we are unable to accept PAPER planning applications, comments on planning applications, compliance complaints or forms relating to the Community Infrastructure Levy (CIL) as all staff are now working from home. Planning applications must be made electronically via the planning portal www.planningportal.co.uk . Comments on planning applications must be made on the online by searching for the application on the website and entering a comment https://www.arun.gov.uk/weekly-lists , compliance complaints must be made on the online form https://www.arun.gov.uk/planning-compliance and the submission of CIL forms (with the exception of CIL Form 1 which must be submitted with the planning application itself) must be sent to CIL@arun.gov.uk.

We are working towards setting up a Development Control Committee for 27 May 2020 to determine planning applications in the normal way. The Government are setting out legislation on how this should be achieved. The Government sent a letter to local councils recently, which is attached here: Chief Planners Newsletter - March 2020.pdf [pdf] 135KB . There is currently no change to the Council’s scheme of delegation and applications will still need to be determined at a Committee meeting if necessary. It is highly likely that this meeting (and future meetings) will be held remotely or with a reduced number of members and details will be published when they have been agreed.

We will not issue any delegated officer decision to approve a major application or a minor application where there are a significant number of objections and the Parish/Town Council have not had the opportunity to comment because of the Covid 19 Pandemic until consultation has been carried out with the Chairman of the Development Control Committee and Portfolio Holder for Planning to confirm that they are in agreement that a decision can be issued.

Planning obligations are legal obligations entered into to mitigate the impacts of a development proposal.

This can be via a planning agreement entered into under section 106 of the Town and Country Planning Act 1990 by a person with an interest in the land and the local planning authority; or via a unilateral undertaking entered into by a person with an interest in the land without the local planning authority.

Planning obligations run with the land, are legally binding and enforceable. A unilateral undertaking cannot bind the local planning authority because they are not party to it.

Planning obligations are also commonly referred to as ‘section 106’, ‘s106’, as well as ‘developer contributions’ when considered alongside highways contributions and the Community Infrastructure Levy (CIL).

The Council may only seek planning obligations which are necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development.

Arun District Council approved the Arun Community Infrastructure Levy (CIL) Charging Schedule on 15 January 2020 and agreed that it would come into effect on 1 April 2020:  https://www.arun.gov.uk/cil

This means that from 1 April, Arun District Council will be a CIL Charging Authority and will charge CIL liable developments on a pound (£) per square metre (sqm) basis in accordance with the charges in Table 6.1 of the Arun CIL Charging Schedule.   Rates will vary based on the type, size and location of each development. CIL is a type of developer contribution which will be used by the Council alongside S.106 and S.278 contributions. 

The introduction of CIL does not mean that S.106 obligations will no longer be used.  In some cases, CIL and S.106 will work alongside each other to ensure adequate mitigation is provided to address the impacts of development. 

The extent to which S.106 obligations will be used will depend on whether CIL is applicable to a development.  For example, where development is proposed which is for a type, and in a location, where CIL applies, then the development will be charged CIL on a £/sqm basis and S.106 will only be used to deliver affordable housing (where applicable), Contribution for Access Management at Pagham Harbour (if applicable) and any on-site mitigation.  However, in some cases, development is ‘zero’ rated for CIL.  Examples of these include:

  • Older people’s housing, sheltered housing and extra care housing in CIL zones 4 and 5
  • Town Centre shops
  • All other development (i.e. any development which is not houses; flats; older people’s housing or retail/supermarkets)

Where CIL does not apply to a development, S.106 obligations will apply just as before CIL was introduced in Arun. 

Key Types of Infrastructure to be provided under Planning Obligation

Affordable Housing

Please see our Affordable Housing page for further details.

Contribution for Access Management at Pagham Harbour

Pagham Harbour is designated as a Special Protection Area and Ramsar site, meaning that it is recognised at an international level in terms of playing an important role linked to the movement of species, specifically waders and wildfowl.

Pagham Harbour policy containted in  section 17.1.16-17.1.22 of the Local Plan2011-2013.pdf [pdf] 36KB of the Arun Local Plan 2011-2031, requires all new residential development within Pagham Harbour zones A and B 0-5km.pdf [pdf] 6MB of Pagham Harbour, contribute towards strategic access management measures.   Cabinet approved the use of a tariff based system on 20 July 2015 and then a reduction in the tariff on 10 April 2017. The cabinet report covering the reasons for the reduction can be viewed here: Pagham Cabinet report.pdf [pdf] 42KB. Further information behind the tariff can be found in the note [pdf] 58KB covering strategic approach to access management at Pagham Harbour.

Any proposed new or additional residential development within Zones A and B (0-5km) will be required to pay a contribution of £871 per unit, in order to make the proposed development acceptable in planning terms. 

Standard Legal Template Deed (Jun19).doc [doc] 1MB  is available for you to complete if this is the only planning obligation applicable to your development.  You must provide us with a hard copy ( we cannot accept an electronic copy as it is a legal document) and please complete it following the instructions carefully or it will be returned  to you for correction. Otherwise this will be incorporated into a bespoke Section 106 Agreement as indicated above. If you have a mortgagee they will be required to sign the deed. In the event that they are not willing to sign the deed there is an Alternative Deed Template (Jun19).doc [doc] 72KB which can be completed but the Pagham Harbour contribution will need to be paid upon signing of the deed rather than commencement of development. If using the alternative deed template please do not date it as the council will date it once all parties have signed it.

This completed deed and checking fee of £200 should be submitted together with your planning application as the application will be held as invalid until this is provided. 

Provision of Public Open Space Within New Development

Residential development of 10 dwellings will be required to provide public open space (e.g. parks and gardens, amenity greenspace, natural and semi natural and allotments),  and those schemes of 9 or more dwellings will provide equipped play space (e.g. LAP, LEAP, NEAP and MUGAs to meet the needs of the development including maintenance and where applicable, financial and site contributions. An excel open space calculator accompanies the Council’s  ‘Open Space Playing Pitches, Indoor and Built Sports Facilities’ Supplementary Planning Document (SPD) to determine the provision and contributions required. All developments of 10 or more dwellings are expected to make provision towards sports playing pitches. The contribution required is based on the Arun Playing Pitches Strategy (PPS) and calculated using sport England’s ‘Playing Pitches New Development Calculator’ (NDC) - this now includes the AGP pitch calculator. The calculator can only be accessed by Arun District Council via registering for free on the Active Places Power website. Provision may also be required for health and fitness facilities and the SPD below is accompanied by a calculator. There is need for developments of 10 or more dwellings to make provision towards indoor sports facilities to meet demand generated by the development. This is calculated using Sport England’s Sports Facilities Calculator (SFC) which will need to be accessed by stakeholders registering on the Active Places Power web site in order to use the SFC. Full details of the Council’s policies and guidance on the provision of and/or contribution that may be required and public open space and play equipment standards can be found in the Council’s Supplementary Planning Document on Open Space Playing Pitches, Indoor and Built Sports Facilities. To view the Supplementary Planning Documents please click on the following link Supplementary Planning Documents

Provision of Public Transport Associated With New Development 

Further details on the Council’s policies and guidance on the provision of public transport associated within new developments can be found within The Adopted Local Plan 2011-2031 Planning Policy & Plan Making section of the website

Provision of Support of Cycling and Walking With New Development

Further details on the Council’s policies and guidance on the provision of public transport associated within new developments can be found within The Adopted Local Plan 2011-2031 Planning Policy & Plan Making section of the website

Provision of Foul and Surface Water Drainage Within New Developments

Where developments will materially increase foul and/or surface water discharge and this increase is beyond the existing capacity for foul and/or surface water drainage, the provision of additional capacity for foul and/or surface water drainage may be required as part of the development. Provision for Sustainable Urban Drainage Systems (SUDS) as alternatives to conventional drainage where appropriate may be required. Proposals for long-term management of any facility must be included in any scheme put forward.

Further details on the Council’s policies and guidance on the provision of foul and surface water drainage within new developments can be found within The Adopted Local Plan 2011-2031 and Arun Local Plan 2003 on  Planning Policy & The Local Plan section of the website

Secondary Education (only applicable to Strategic Housing Allocations from 1st April 2020)

Please find below a position statement agreed by Arun District Council and West Sussex County Council regarding developer contributions towards secondary education in the district.

ADC WSCC Secondary Education Contributions Final 2019.pdf [pdf] 650KB

Fees required for drawing up a Legal Agreement

Legal Fees

Planning obligations are recorded by a formal legal document, known as a ‘deed’.  The Council charges a legal fee to cover its costs of preparing, checking and producing this deed.  VAT is not payable.  The fee is payable whether the deed completes or not.  You will need to pay £450 up front, and settle the balance before completion. No work will be undertaken until the fee has been received. This fee is for a standard straightforward Section 106 Agreement.  For Section 106 Agreements that involve more work, for example where the applicant seeks to negotiate the terms of the Agreement, an additional fee will be payable.  This additional fee will be charged at the hourly rate of the officer dealing with the matter.  You will be advised accordingly.

Payment can be made by cheque made payable to Arun District Council or by debit /credit card over the telephone or web site (if paying on line ensure you pick the pay a ‘planning fee’ option and state the full planning application reference where requested. 

Monitoring Fees

Planning obligations are recorded by a formal legal document, known as a ‘deed’.  From the 1st September 2019 the Council can charge a monitoring fee to cover its costs of monitoring each obligation for the time that the obligation is ‘live’.  As the monitoring fee must relate in scale and kind and must not exceed the estimated cost of monitoring the development over its lifetime, you will be advised before completion of the deed as to the charge that will be applied. VAT is not payable.

This monitoring fee schedule has been calculated on a cost recovery basis using past evidence on the average time taken between a completed agreement and payment or compliance with an obligation. It only covers Arun District Councils Monitoring officer(s) time. 

West Sussex County Council will add their own Monitoring Fee to cover their time (From 1st April 2020)

 

The Schedule of Monitoring Fees payable per obligation in an Agreement - payable at the same time as the 1st payment due date (or commencement). You will be invoiced accordingly.

Pagham Access Contribution on Minor Residential development
(less than 10 dwellings) Where contribution is paid upfront before the agreement is completed

Pagham Access Contribution on Minor Residential Development (of less than 10 dwellings)

Non-Residential Development & Major Residential Developments (Over 10 dwellings)

£0

£150 for 1 dwelling

£200 for 2 dwellings

£450 for 3-9 dwellings

£450 per Arun Financial Obligation (based on 9 hours monitoring over 3 years)

£900 per Arun Non-Financial Obligation (based on 18 hours monitoring over 6 years)

£150 per WSCC Obligation (based on 9 hours monitoring over 3 years by Arun)

 

Section 106 Compliance Guidance - Complying with financial and non-financial Obligations

It is vital that all parties understand their obligations so that they know what is required of them and when. Once an agreement is signed and completed, details are recorded in our database along with its linked planning application, in order to facilitate our monitoring processes.

It is the duty of the owner to adhere to their obligations, as laid out in the agreement. Although we do monitor agreements, it is the owner’s responsibility to initiate payment or send information to comply with obligations at the required time. Failure to meet obligations at the required time may result in additional costs and/or enforcement action.

Within the S106 agreement there are normally clauses that state that the owner must complete certain schedules - The commencement notice and The payment notice. It is a legal and contractual requirement that these documents are completed and sent to the relevant Authority* at the appropriate time.

Any change in ownership of the site must also be notified to us in writing as soon as this occurs:

*Relevant Authority

Payment or information due to Arun District Council to be sent to
Group Head of Planning
Arun District Council
Arun Civic Centre
Maltravers Road
Littlehampton
West Sussex
BN17 5LF

planning@arun.gov.uk

or

Payment or information due to West Sussex County Council to be sent to
County Planning Officer
West Sussex County Council
County Hall
Chichester
West Sussex
PO19 1RQ

planning.services@westsussex.gov.uk

 Land charges

Planning Agreements are registered as a local land charge upon completion of the agreement and will they be revealed in any local land charge search. They are not removed until a formal Deed of Discharge has been completed or if the agreement becomes of no effect due to subsequent planning application refusal or amended application.  If the revealed agreement does not have a clear comment against it to say ‘Complied with or Superseded by subsequent agreement/application’ than it should be assumed to still have outstanding obligations.   In these cases please write to the Planning Department to check (there is no charge for this).  If land is subject to a planning obligation which has not been (or is not being) complied with, it may become difficult to dispose of the land given that obligations generally pass to successors in title.

 How are financial planning obligations enforced?

If a breach of a financial obligation does occur, the relevant party will be given an opportunity to remedy the breach but if it is still not paid within strict timescales, court recovery proceedings will be taken.

 How are non-financial planning obligations enforced?

The council can enforce these in two ways:

  • Through the courts by way of an application for an injunction. 
  • By carrying out any operations required in the planning obligation and recovering the cost from the person(s) against whom the obligation is enforceable

Should you have any questions relating to the implementation of your obligations, you should contact the Planning Contributions & Data Analysis Officer via planning@arun.gov.uk

Deeds of Variation/Discharge of Planning Obligation(s)

In some circumstances an application can be sought to vary the wording or remove an obligation.  Please apply using the forms below.  There is no cost to make the application but legal fees starting at £450 will be payable dependent on the complexity of the agreement.

Application to Discharge or Amend Planning Obligation.pdf [pdf] 274KB

Draft Agreement.doc [doc] 39KB