Developer obligations regarding Secondary School Transport Contributions in Arun District, September 2022

1. Delivery of a secondary school in Arun District, required to mitigate allocated development as set out in policy within Arun’s Local Plan, has been delayed. Developer contributions are being secured to deliver this secondary school in line with the ‘Developer obligations regarding the 10FE secondary school requirement in Arun District Council’ joint paper between West Sussex County Council (WSCC) and Arun District Council (ADC). However, the absence of a secured site presents a capacity shortfall in Arun District for secondary school places due to pressure from increased development.

2. As a result of the delay and a declining number of available secondary school places, WSCC as the Local Education Authority, must object to further sites coming forward for planning permission without progression on the location and delivery of the new secondary school in order to mitigate the impacts of development as required by the policy in the Local Plan.

3. With planning permissions already granted across the district, demand for secondary school places in Arun are forecasted to exceed capacity by the start of the academic year 2025/26. Therefore, any further sites permitted in Arun that require secondary school places will have obligations to transport children across the district boundary to other secondary schools. This arrangement will be needed until such time that a new secondary school to meet Arun requirements is built and open to pupils.

4. This is not a school transport policy, but rather a note to assist in the delivery of planning obligations for secondary school transport costs in Arun. The school transport policy can be accessed here.

5. Developers are required to mitigate the impacts of their development in accordance with Regulation 122 of The Community Infrastructure Levy Regulations 2010 as amended. Planning obligations assist in mitigating the impact of unacceptable development to make it acceptable in planning terms. Until such time that a new secondary school to meet Arun requirements is built and open to pupils, transport costs are required to mitigate the additional costs of transporting pupils out of Arun District to access education places at alternative secondary schools. These pupils may be in residence throughout Arun District and not limited to the development site in question due to the School Admissions Code.

6. Developer contributions are required to meet the additional mitigation requirements from their development; Paragraph 008 of the Planning Obligations Planning Practice Guidance sets out that “Developer contributions towards additional capacity may be required …… and both temporary and permanent needs where relevant (such as school transport costs and temporary school provision before a permanent new school opens)”.

7. WSCC will continue to meet its statutory duties, providing education places for statutory school age children across the County. WSCC also seeks to place children within their preferenced schools or at their nearest school. However, if local schools are unable to provide a place, then more distant schools are considered by a process of elimination based on closest first. WSCC’s published admissions policy can be seen at the following link:- School admission policies - West Sussex County Council

8. The Education Act 1996, as amended by Part 6 of the Education and Inspections Act 2006, places a duty on Local Authorities to make suitable travel arrangements free of charge for eligible children that they consider necessary to facilitate their attendance at school. The maximum acceptable walking distance is defined by S.444(5) of the Education Act 1996 as two miles for under eights and three miles for those aged eight years and above.

9. Where it is not possible to access a school place within a safe walking distance from a proposed development, WSCC will seek a contribution from proposed developments towards funding the provision of home to school transport in accordance with the West Sussex home to school transport policy.

10. New developments in Arun will produce more secondary age children than there are available places in Arun secondary schools. As set out above, it is possible that children needing transport are in residence throughout Arun District as a result of the schools admissions code which is set nationally. Therefore, contributions need to be based on actual costs for school transport across West Sussex, and not from a specific location. Contributions towards a new secondary school in addition to interim secondary school transport costs are required from sites coming forward with residential elements that will lead to additional secondary school children.

11. This contribution is required in order to cover the cost of providing new or additional transport based upon a calculation of the number of pupils generated by the development that require secondary school places before a new secondary school in Arun is delivered. The costs are based on occupancy rates for secondary school aged children generated by the development.

12. Contributions will be required to be paid to the County Council in accordance with the secondary school transport contribution methodology and will be used towards school transport for the number of secondary school children expected from the development to the nearest secondary school with places available. Transporting pupils from within Arun District will be required until all pupils have completed full time statutory education at the completion of Year 11.

13. Section 106 contributions are usually paid in instalments at key stages during the construction and/or occupation of a development. It should be noted that payment triggers for secondary school transport contributions will be required in advance of housing completions. It is important that public transport infrastructure and services are available at the earliest opportunity to encourage new residents to adopt sustainable modes of travel from the outset.

14. Both applications for any parts of allocated sites in the Development Plan for Arun District plus non-allocated sites of 11 or more dwellings will be required to pay contributions based on the secondary school transport contribution methodology below. Where a s106 legal agreement is not being prepared for any other purpose for the development, the standard unilateral undertaking (Appendix A) will be required to be delivered to WSCC.

Cost methodology

The temporary costs to transport children to the nearest available or West Sussex catchment school with space is calculated by using the equation A / B x C = D and

D x (E x F) = Secondary School Transport Contribution

Where:
A – actual cost of transport per day in West Sussex for bus/coach travel to school, at the time of the signing of the legal agreement. Which for 2022/23 is £400 per day, with costs revised annually
B – coach capacity (53)
C - number of academic days in a year (190)
D - Cost per pupil per year (400 per day / 53 = £7.54 x 190 = £1434 per pupil per year for 2022/23; costs are reviewed annually in April)
E – number of children generated by the development aged 0-16 (the Child Product)
F – 5 years of Secondary Education

This Planning Obligation is made the ………… day of …………………….. 2023 and is given in the form of a Unilateral Undertaking

BY

1. [ ] Company Registration Number [ ] whose registered office is situated at [ ] (hereinafter called “the Owner”)
2. [ ] Company Registration Number [ ] whose registered office is situated at [ ] (hereinafter called “the Mortgagee”)

TO

WEST SUSSEX COUNTY COUNCIL of County Hall, West Street, Chichester, West Sussex, PO19 1RQ (hereinafter called “the County Council”)

1. Arun District Council (‘the District Council’) is the District Council for the area in which the Land is situated and have resolved that subject to the completion of this Unilateral Undertaking planning permission be granted subject to the conditions for the Development
2. The County Council is the Education Authority for the area in which the Land is situated and is the authority by whom the obligations in this Deed are enforceable
3. The Owner is the owner of the freehold of the Land edged red on Plan 1 [subject to a mortgage in favour of the Mortgagee]
4. The [Owner] has made the Application and is proposing to carry out the Development
5. The [Owner] [and the Mortgagee] are willing to give this Unilateral Undertaking to the County Council and have agreed to comply with the terms and conditions contained herein
6. The District Council has resolved that subject to the completion of this Unilateral Undertaking and payment to the County Council of the County Council Monitoring Contribution Planning Permission shall granted subject to the conditions for the Development
7. [The Mortgagee is the mortgagee of, inter alia, the Land and has agreed to enter into this Unilateral Undertaking in order to give its consent to the terms of the Unilateral Undertaking]

1. Interpretation

1.1 In this Unilateral Undertaking unless otherwise stated the following expressions shall where the context so admits have the following meanings:

“the 1990 Act” shall mean the Town and Country Planning Act 1990 (as amended).

“the Application” means an application for planning permission made to the District Council and given reference number [ ]

“Commencement of Development” the carrying out in relation to the Development of any material operation as defined by section 56(4) of the TCPA 1990 but disregarding for the purposes of this deed and for no other purpose, the following operations:

• demolition works;
• site clearance;
• ground investigations;
• site survey works;
• temporary access construction works;
• archaeological investigation; and
• erection of any fences and hoardings around the Property.

“County Council Monitoring Contribution” means the total sum of £720 payable to the County Council for monitoring the delivery and performance of a Qualifying Trigger contained in this Deed over the lifetime of the Development;

“Default Interest Rate” means interest at the rate of 4% above the Bank of England base rate applicable at the relevant payment date which shall be calculated on a day-to-day basis

“Development” shall mean the development authorised by the Planning Permission.

“Index Linked” means in relation to the Secondary School Transport Contribution, that the contributions payable by the Owner under this Deed shall be increased by the application of the following formula:

A = B x C/D (where C/D is equal to or greater than 1)

Where A is the sum actually payable on the date of payment
B is the original sum mentioned in this Deed
C is the BCIS Index preceding the date of payment
D is the BCIS Index preceding the date of consultation response on the Application and Indexation shall be construed accordingly;

“Land” shall mean land at [ ] [registered under Title Number [ ] or with unregistered title by a root conveyance dated [ ] made between [ ] and [ ] ] and shown edged red on Plan 1 attached hereto

“ Plan 1” shall mean the plan annexed hereto and marked Plan Number 1

“Planning Permission” shall mean planning permission to be granted by the District Council in respect of the Application

“Qualifying Trigger” means any trigger contained within this Deed that attracts the County Council Monitoring Contribution because its implementation and/or adherence requires monitoring by the County Council;

“Secondary School Transport Contribution” shall mean the contribution of [ ] (£ pounds) calculated in accordance with the Secondary School Transport Contribution Methodology which shall be paid to the County Council to be used towards school transport for the number of secondary aged children expected from the development, to an existing secondary school.

“Secondary School Transport Contribution Calculation Methodology” shall mean the method of calculation of the Secondary School Transport Contribution calculated by the County Council based on the current costs for transporting school aged children using passenger transport, to the nearest secondary school with places available, based on £1434 per pupil, per year (for 2022/23 costs are revised annually in April).

The temporary costs to transport children to the nearest available or West Sussex catchment school with space is calculated by using the equation A / B x C = D and

D x (E x F) = Secondary School Transport Contribution

Where:

• A – actual cost of transport per day in West Sussex for bus/coach travel to school, at the time of the signing of the legal agreement. Which for 2022/23 is £400 per day, with costs revised annually
• B – coach capacity (53)
• C - number of academic days in a year (190)
• D - Cost per pupil per year (400 per day / 53 = £7.54 x 190 = £1434 per pupil per year for 2022/23; costs are reviewed annually in April)
• E – number of children generated by the development aged 0-16 (the Child Product)
• F – 5 years of Secondary Education

1.2 Words importing the singular includes the plural and vice versa

1.3 References to clauses sub clauses recitals annexes and schedules are unless otherwise stated references to clauses sub clauses recitals annexes and schedules to this agreement

2. Statutory Provisions

2.1 This Deed constitutes a Planning Obligation for the purposes of Section 106 of the Act, Section 111 of the Local Government Act 1972, Section 1 of the Localism Act 2011 and all other powers and the obligations contained herein are planning obligations for the purposes of Section 106 of the Act and are entered into by the Owner with the intention that they bind the Owner’s respective interests in the Land and those of their successors and assigns

2.2 The covenants, restrictions and obligations contained in this deed are planning obligations for the purposes of section 106 of the TCPA 1990 and are entered into by the Owner with the intention that they bind the interests held by those persons in the Property and their respective successors and assigns

2.3 This Unilateral Undertaking shall have full force and effect from the date hereof

2.4 the Obligations in this Deed are conditional upon and will not take effect until the grant of Planning Permission except Clause 4, 5 & 6

2.5 The Planning Obligations contained in this Deed are enforceable by the County Council

3. The Owner's covenants

3.1 The Owner hereby covenants with the County Council that upon completion of this Deed it shall pay to the County Council the County Council Monitoring Contribution

3.2 The Owner hereby covenants with the County Council that upon Commencement of Development the Owner shall pay to the County Council the Secondary School Transport Contribution Index Linked

3.3 It is hereby acknowledged for the avoidance of doubt and without prejudice to the above that the County Council is authorised to apply the Secondary School Transport Contribution

4 Interest

4.1 If any sum or amount has not been paid to the County Council by the date it is due, the Owner shall pay the County Council interest on that amount at the Default Interest Rate. Such interest shall accrue on a daily basis for the period from the due date to and including the date of payment.

5 Miscellaneous

5.1 This Deed is a Local Land Charge and shall be registered as such

5.2 The Owner shall give notice in writing to the County Council of the date of the Commencement of the Development (“ the Commencement Notice”) the Commencement Notice shall be sent to the County Councils Planning Monitoring and Records Team at the address herein and shall be delivered as follows:

• a) By hand; or
• b) Sent by pre-paid first-class post of other next working day delivery service

5.3 Notwithstanding the provisions of the Contracts (Rights of Third Parties) Act 1999 nothing in this Deed confers or purports to confer any right to enforce any of the terms and provisions herein on any person who is not a party hereto or a successor in title or a statutory successor to a party hereto.

5.4 The Owner shall pay to the County Council on or before the date of this deed the County Council's reasonable and proper legal costs together with all disbursements incurred in connection with the preparation, negotiation, completion and registration of this deed.

5.5 No person shall be liable for any breach of a covenant, restriction or obligation contained in this deed after parting with all of its interest in the Property, except in respect of any breach subsisting prior to parting with such interest

5.6 Insofar as any clause or clauses of this Deed are found (for whatever reason) to be invalid illegal or unenforceable then such invalidity illegality or unenforceability shall not affect the validity or enforceability of the remaining provisions of this Deed

5.7 No waiver whether express or implied by the County Council of any breach or default by the Owner(s) in performing or observing any of the obligations contained herein shall constitute a continuing waiver and no such waiver shall prevent the County Council from enforcing the relevant obligations or from acting upon any subsequent breach or default

5.8 This Deed shall cease to have any effect (insofar only as it has not been complied with) if the Planning Permission shall be quashed revoked or otherwise withdrawn or if the Commencement Date has not occurred in accordance with section 56 of the 1990 Act before the expiration of the period specified in the Planning Permission

6. Governing Law

This deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

IN WITNESS whereof this Unilateral Undertaking has been executed as a Deed and Delivered on the day and year written above.

EXECUTED as a DEED by )
[ ] )
in the presence of:- )
Director
Secretary
The COMMON SEAL of ) [Mortgagee if relevant]
was hereunto affixed )
in the presence of:- )
Dated……………………..2023
[ ]
and
[ ]
to
West Sussex County Council

PLANNING OBLIGATION

By way of Unilateral Undertaking
Under section 106 of the Town & Country Planning Act 1990 relating to land at [ ]