Planning obligations (section 106)

Planning obligations (section 106 or s106) are a form of developer contribution made between the local authorities and landowners/developers. The land itself, rather than the person or organisation that develops the land, is bound by a legal agreement, something any future owners will need to consider.

S106 obligations are used to lessen the impact of development by securing contributions or on-site provision for infrastructure such as affordable housing, healthcare, education, sports, community facilities, parks and protection of species at Pagham Harbour. 

West Sussex County Council collect s106 contributions for anything under their authority, such as schools, highways and education.

Where the Community Infrastructure Levy (CIL) does not apply to a development, s106 obligations will still apply just as before CIL was introduced.  All strategic development sites allocated within the Local Plan are required to pay s106 rather than CIL.

Our CIL page has more details on the CIL process.

Small sites (1 to 9 dwellings or non-residential site area of less than 1000sqm)

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 and provide the infrastructure as detailed on their allocation policy.

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 £950 per new unit to contribute towards strategic access management measures per the Local Plan policy ENV DM2 [pdf] 36KB and the Cabinet report dated 13 March 2017 [pdf] 42KB. Please also see the Planning Policy Committee Agenda- Tuesday 28 November 2023 and the Committee Report 28 November 2023.

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.

Please note that other residential uses which may impact the area including HMO, student accommodations, care homes, holiday homes, caravans, camping and hotels may be required to pay a contribution and you are advised to contact us for how to calculate the number of units specific to your development. 

This current contribution amount of £950 applies only until 31 March 2025 and will be increased to account for indexation around 1 April each year.

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. 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. These circumstances will require the Pagham Harbour contribution to be paid on completion of the deed rather than commencement of the development.

If there are no other obligations required and you are using one of the legal templates there is a legal fee of £200. This fee is based on the land being registered. If it is not or a lot of additional work has to be carried out by the legal team 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.

Make a payment online

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 s106 agreement will need to be drawn up once we have carried out consultations. In this scenario, you do not need to submit the standard template with your application.

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.

Make a payment online

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.

An additional monitoring fee may be added for biodiversity net gain (BNG) monitoring, and the planning case officer will advise you of the amount before completion of the deed.

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:

£170 for 1 dwelling

£330 for 2 dwellings

£500 for 3 to 9 dwellings

£500 for non-residential use of less than 1000sqm

Major sites - (10 or more dwellings or 1000sqm or more of non-residential)

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 and provide the infrastructure as detailed on their allocation policy.

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 £950 per new unit 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. Please also see the Planning Policy Committee Agenda - Tuesday 28 November 2023 and Committee Report 28 November 2023

Please note that other residential uses which may impact on the area including HMO’s, Student Accommodation, Care homes, Holiday Homes, Caravan, Camping and Hotels may be required to pay a contribution and you are advised to contact us for how to calculate the number of units specific to your development.

This current contribution amount of £950 applies only until 31 March 2025 and will be increased to account for indexation around 1 April each year.

 

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.

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.

Make a payment online

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.

An additional Monitoring Fee may be added for Biodiversity Net Gain (BNG) Monitoring, and the Planning Case Officer will advise you of the amount before completion of the deed.

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. Your monitoring fee will be based upon the type and size of the major development as follows but additional bespoke fees may be added on particularly complex sites which have multiple phases and triggers for monitoring:

Non-Strategic Allocation major site - (10 or more dwellings or 1000sqm or more of non-residential)

  • £500 per Arun financial obligation
  • £1000 per Arun non-financial obligation

Strategic Allocation major site 'medium size' (10-500 dwellings or 1001-100,00sqm/0.51-10ha of non-residential) 

  • £700 per Arun financial obligation
  • £1200 per Arun non-financial obligation 

Strategic Allocation major site 'large size' (501 or more dwellings or 100,001sqm/10ha or more of non-residential)

  • £900 per Arun financial obligation
  • £1200 per Arun Non-Financial obligation

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 landowner to comply with their obligations as laid out in the planning agreement. The strategic team at Arun and the information management team at West Sussex County Council monitor planning obligations under their relevant area of authority for compliance, but it is always the owner’s responsibility to initiate payment or send information to comply with their obligations at the required time. Failure to meet obligations on time may result in additional costs and/or enforcement action.

It is very important to ensure all pre-commencement obligations and planning conditions are discharged prior to commencing on site. You are strongly advised to contact the strategic monitoring team at Arun before you start any work on site such as enabling and investigative works. 

Within the section 106 agreement there are normally clauses that state that the owner must complete certain notifications:

It is a contractual requirement that these notifications are completed and sent to all the relevant authorities on the s106 at the appropriate time.  You may be required to send in similar notifications as part of other regulations such as CIL and Building Regulations, but it is important that you send in the relevant separate notification under each regime. 

Contacts for payment, notifications or other information that is required to be sent to either authority:

Arun District Council

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

West Sussex County Council

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 planning agreement contains obligations for  minor scheme details to be submitted/discharged/approved prior to a particular trigger point. For example, to obtain approval for an open space scheme, play area or an affordable housing scheme. 

It would help us if you could submit the required details using our ‘AOO’ application form [docx] 50KB with a covering letter, even if you think the details have already been approved as part of a planning permission.  Please do not commence development until you have received a letter from us to confirm that the details submitted are acceptable.

This application process is only for obligations under Arun District Council authority, to aid our processing and monitoring, it does not provide a legal discharge of the obligation, which can only be completed with a Deed of Discharge under Section 106A, the process for which is more time consuming.  However, if you still wish to obtain a formal deed of discharge, when the s106 is fully complied with, then please refer to the paragraph below on how to apply for ‘modification or discharge of planning obligations’. 

Please contact West Sussex County Council via planning@westsussex.gov.uk  for any obligation details that are required to be approved by the county council.

Modification or discharge of planning obligations under s106

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 but you may be charged a legal fee.

If the variation has been negotiated with us, then a Deed of Variation will be required to be entered into and a legal fee will be charged. This fee is to cover the costs of preparing and completing the new deed. 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 of deed.

If the modification has not been agreed in principle, a formal application can be submitted 5 years after the date of the s106 to determine whether the proposed modification or discharge can be allowed. A deed of variation may be required alongside the application.

To apply for either type of modification please complete the application to modify or discharge planning obligation[docx] 49KB.

Please note: this form is not to be used for getting details approved as required under an obligation – see  approval of details under obligation.

Enforcement of financial planning obligations

If a breach of a financial obligation occurs, the relevant party will be given an opportunity to remedy the breach.  Interest will start accruing from the payment due date to the payment date.  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 in accordance with our  Planning Compliance Strategy [docx] 71KB

Implementing your application with obligations

If you have any questions relating to the implementation and/or the status of compliance with your development, you should contact the monitoring officers via strategic@arun.gov.uk

Local land charges - guidance for purchasers of property or land with a planning agreement

Planning obligations are registered as a local land charge upon completion of the deed and will be revealed in any local land charge search. 

S106 registrations are not generally removed from the local land charge register completely unless they were never of any effect due planning application refusal.

If land or property is subject to planning obligations which have not been complied with, it may be difficult to sell or transfer the land, as obligation liabilities generally pass to successors in title.

Please look at the comments section of the s106 registration and the CON29 question responses for any potential warnings about outstanding matters and non-compliance.

If in any doubt you can check the compliance status on Arun District Council authority obligations, by emailing your request including the specific agreements you want us to check to planning@arun.gov.uk.  (There is no charge for this service, but it may take approximately 10 working days for a response).  

To check for compliance on West Sussex County Council obligations and any fee requirements please contact land.charges@westsussex.gov.uk

You should also check whether the conditions on the linked planning permission(s) have been discharged before occupation. 

On applications determined after 2010 you can undertake your own research using our website.  Alternatively, you may request we do the condition check for you but there is a charge for each application to be checked. Please email planning@arun.gov.uk