Planning obligations (section 106)
Planning obligations are legal agreements which are either:
- negotiated and secured between us and the developer or landowner before planning permission is granted
- submitted by the developer or landowner as a unilateral undertaking as part of their planning application
Planning obligations are used to lessen the impact of development by either:
- securing contributions for local authorities to provide infrastructure, for example healthcare, education, sporting facilities, protection of species at Pagham harbour
- securing the developer to provide infrastructure within their development or the vicinity, for example by providing affordable housing or a new open space
Planning obligations under section 106 should only be required where they are:
- necessary to make the proposed development acceptable in planning terms
- directly related to the proposed development
- fair and reasonable in scale and kind to the proposed development
Where the viability of a scheme requiring a section 106 agreement is challenged we will use external resources to provide advice.
Where CIL does not apply to a development, section 106 obligations will still apply just as before CIL was introduced. All strategic development sites allocated within the Local Plan are required to pay section 106 rather than CIL.
Small sites (1 to 9 dwellings - except small sites on a Strategic Allocation)
Key types of infrastructure to be provided
The following items will normally be included in a section 106 if they cannot be provided under CIL:
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 for playing an important role linked to the movement of species, specifically waders and wildfowl.
Any proposals for new residential development and development which is likely to have an impact on Pagham Harbour within the Pagham harbour buffer zone (0 to 5km) [pdf] 6MB will be required to pay a contribution of £871 per new dwelling to contribute towards strategic access management measures in accordance with the Local Plan policy ENV DM2 [pdf] 36KB and the Cabinet report dated 13 March 2017 [pdf] 42KB.
If the application is for 1 to 8 dwellings and this is the only planning obligation applicable to your development you can submit a unilateral undertaking with your planning application using our standard legal template-deed [doc] 1MB . You must provide us with a hard copy. We cannot accept an electronic copy as it is a legal document. Please ensure you follow the completion instructions carefully to avoid us having to return it to you for correction.
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 [doc] 1MB which can be completed, but the Pagham Harbour contribution will need to be paid upon signing of the deed rather than commencement of the development. If you do not have title to the property due to a pending application at the Land Registry, the alternative deed template can be used in such circumstances. This will require the Pagham Harbour contribution to be paid on the date of the deed rather than commencement of the development.
If there is no other obligation and you are using one of the legal templates there is a legal fee of £200. This fee is based on the fact that the land is registered. In the case of unregistered land or in the case where a lot of additional work has to be carried out by us in order to finalise the deed, we reserve the right to charge for any additional work. The £200 fee should be submitted with the completed deed when you submit your planning application.
Payments can be made in the following way:
Online card payment
Please ensure you select the ‘planning fee’ option and include the full planning application reference where requested.
Online banking
You will need our bank details:
Payee or name of account: Arun District Council
Sort code: 30 80 12
Account number: 146 1 5968
Reference: full planning application reference
Please allow five working days for your payment to reach us.
If the application is for 9 dwellings it is likely that there will be a public open space contribution and a bespoke 106 agreement will need to be drawn up once we have consulted with the lansdscapes team - so you do not need to submit the standard template with your application.
Obligation for public open space
Residential developments of 9 dwellings will be required to provide equipped play space in accordance with the Open space, playing pitches, indoor and built sports facilities supplementary planning document (SPD) January 2020[pdf] 1007KB
Fees required for drawing up planning obligations
Legal fee
Where a section 106 agreement has to be drawn because more than one obligation applies, we charge a legal fee to cover the costs of preparing, checking and producing this deed. VAT is not payable. The legal fee is payable whether the agreement completes or not. You will need to pay the legal fee before completion of the deed.
Payments can be made in the following way:
Online card payment
Please ensure you select the ‘planning fee’ option and include the full planning application reference where requested.
Online banking
You will need our bank details:
Payee or name of account: Arun District Council
Sort code: 30 80 12
Account number: 146 1 5968
Reference: full planning application reference
Please allow five working days for your payment to reach us.
Monitoring fee
The monitoring fee schedule has been calculated on a cost recovery basis using past evidence on the average time taken between a completed section 106 agreement and payment or compliance with an obligation. It only covers the section 106 monitoring officer’s time.
West Sussex County Council will add their own monitoring fee to cover their monitoring time.
Monitoring fees are payable at the same time as the first contribution is also payable (or some cases on commencement). You must complete a payment notice [docx] 16KB just before the payments are due and an invoice will be sent.
Where the contribution is paid upfront before the section 106 agreement is completed there is no monitoring fee, otherwise it is as follows:
£150 for 1 dwelling
£200 for 2 dwellings
£450 for 3 to 9 dwellings
Larger sites - 10 or more dwellings (or small sites on a Strategic Allocation)
Key types of infrastructure to be provided
The following items will normally be included in a section 106 if they cannot be provided under the CIL regime. All schemes falling within a strategic development site allocated in the Local Plan will be required to enter into a section 106 agreement.
Provision of affordable housing
For all developments of 11 residential units or more we will require a minimum 30% of the total number of units proposed on site to be provided as affordable housing. For more details about this policy see affordable housing.
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 for playing an important role linked to the movement of species, specifically waders and wildfowl.
Any proposals for new residential development and development which is likely to have an impact on Pagham Harbour within the Pagham harbour buffer zone (0 to 5km) [pdf] 6MB will be required to pay a contribution of £871 per new dwelling to contribute towards strategic access management measures in accordance with the Local Plan policy ENV DM2 pdf] 36KB and the Cabinet report dated 13 March 2017 [pdf] 42KB.
Provision of public open space, playing pitches, indoor and built sports facilities
Residential developments of 9 or more dwellings will be required to provide some of this infrastructure in accordance with the Open space, playing pitches, indoor and built sports facilities supplementary planning document (SPD) January 2020[pdf] 1007KB.
The open space calculator [xlsx] 18KB applies thresholds for helping determine on and off-site contributions and further information can be found in the sport and open space toolkit February 2020[pdf] 226KB.
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 drainage systems (SuDS) as alternatives to conventional drainage where appropriate may be required. For further information see our supplementary requirements for surface water drainage proposals.
Proposals for long-term management of any facility must be included in any scheme put forward.
Further details on our policies and guidance on the provision of foul and surface water drainage within new developments can be found within our Local Plan 2011-2031.
Provision of public and community transport, improvements to cycling and walking, highways, education, libraries, fire services and waste
Provision of these areas of infrastructure are under the authority of West Sussex County Council (WSCC). Further details on our policies in relation to the above can be found within our Local Plan 2011-31 and for more information and contribution calculators please go to the WSCC webpage on planning obligations.
Secondary education
Please find below a position statement agreed by us and West Sussex County Council regarding developer contributions towards secondary education in the district together with supplementary transport obligations and relevant legal agreement template.
ADC WSCC secondary education contributions - final [docx] 71KB
Fees required for drawing up a planning obligation
Legal fees
Where a section 106 agreement has to be drawn because more than one obligation applies, we charge a legal fee to cover the costs of preparing, checking and producing this deed. VAT is not payable. The legal fee is payable whether the agreement completes or not. You will need to pay the legal fee before completion of the deed.
Payments can be made in the following way:
Online card payment
Please ensure you select the ‘planning fee’ option and include the full planning application reference where requested.
Online banking
You will need our bank details:
Payee or name of account: Arun District Council
Sort code: 30 80 12
Account number: 146 1 5968
Reference: full planning application reference
Please allow five working days for your payment to reach us.
Monitoring fee
This monitoring fee schedule has been calculated on a cost recovery basis using past evidence on the average time taken between a completed section 106 agreement and payment or compliance with an obligation. It only covers section106 monitoring officer’s time.
West Sussex County Council will add their own monitoring fee to cover their monitoring time.
Monitoring fees are payable at the same time as the first contribution is also payable (or some cases on commencement). You must complete a payment notice [docx] 16KB just before the payments are due and an invoice will be sent.
Non-residential developments and residential developments of 10 or more 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 (financial or non-financial) (based on 9 hours monitoring over 3 years)
For sites of less than 10 see the guidance on small sites.
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.
It is the duty of the owner to follow their obligations laid out in the section 106 agreement. Although we do monitor planning obligations, 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.
It is very important to ensure all pre-commencement obligations and conditions are discharged prior to starting on site. You are strongly advised to contact the strategic monitoring team who will be checking developments for compliance well before you plan to start work.
Within the section 106 agreement there are normally clauses that state that the owner must complete certain schedules:
- commencement notice [docx] 14KB – when an obligation trigger has been reached
- payment notice [docx] 16KB - when an obligation payment is made/due (upon receipt of this notice an invoice will be raised)
It is a legal and contractual requirement that these documents are completed and sent to the relevant authority at the appropriate time.
If there is a change of ownership of the site you must notify us as soon as this occurs. This must be done in writing using the change in ownership form [docx] 14KB
Relevant authority contact details:
Payment, forms or information for Arun District Council to be sent to:
Group Head of Planning
Arun District Council
Arun Civic Centre
Maltravers Road
Littlehampton
West Sussex
BN17 5LF
Email planning@arun.gov.uk
Phone 01903 737756
Payment, forms or information for West Sussex County Council to be sent to:
County Planning Officer
West Sussex County Council
County Hall
Chichester
West Sussex
PO19 1RQ
Email planning.services@westsussex.gov.uk
Phone 01243 642118
Approval of details under obligation
Sometimes the section 106 contains obligations to get certain minor details approved prior to commencement, for example, to obtain approval for an open space maintenance scheme, play area equipment or an affordable housing scheme.
It would help us if you could submit these details using this application form [docx] 50KB or with a covering letter, even if you think they have already been approved as part of the planning permission. Please do not commence development until you have received a confirmation letter from us to confirm that the details submitted have been approved.
Land charges
Planning obligations are registered as a local land charge upon completion of the section 106 agreement and will be revealed in any local land charge search.
They are not removed from the local land charge register until either:
- a formal deed of discharge has been completed
- the section 106 agreement becomes of no effect due to a subsequent planning application refusal/dismissal at appeal
If the revealed section 106 agreement does not have a clear comment against it to say ‘complied with’ or ‘of no effect/fallen away’ then it should be assumed to still have outstanding obligations which may be passed on to successors in title.
If land is subject to planning obligations which have not been or are not being complied with, it may become difficult to sell or transfer the land as obligations generally pass to successors in title.
For confirmation of obligation compliance please email planning@arun.gov.uk. There is no charge for this.
Enforcement of financial planning obligations
If a breach of a financial obligation does occur, the relevant party will be given an opportunity to remedy the breach. If it is still not paid within strict timescales, court recovery proceedings will be taken.
Enforcement of non-financial planning obligations
The relevant party will be given an opportunity to remedy the breach but if not addressed within strict timescales we can enforce them:
- 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 persons against whom the obligation is enforceable
Implementing your obligations
If you have any questions relating to the implementation of your obligations you should contact the planning contributions and data analysis officer via planning@arun.gov.uk.
Modification or discharge of planning obligations
In some circumstances a s106 agreement can be varied or discharged by either:
- negotiation
- making a formal application to us where the s106 agreement is more than 5 years old
There are no costs to make either request for variation. You may be charged a legal fee.
If the variation is by negotiation then a Deed of Variation will be required and the legal fee will be charged. This fee is to cover the costs of preparing, checking and producing the agreement. We will tell you the approximate cost of this when the Deed of Variation is being prepared. You will have to pay the legal costs before completion.
If the variation is by formal application a Deed of Variation is not usually required.
To apply please complete the application to discharge or amend planning obligation [docx] 48KB.
Please note: this form is not to be used for getting details approved under obligation – see approval of details under obligation.