Section 106 planning obligations

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• What does a planning obligation consist of?

  They may cover one or more of the following:

  • restricting the use of the land or the way in which a development is to be carried out;
  • requiring specific operations or activities to be carried out;
  • requiring the land to be used in a specific way;
  • requiring a sum or sums of money to be paid to us for specified purposes.

  Planning obligations may be used for a wide range of purposes. However, Government policy gives a clear set of rules which planning obligations must adhere to. They must:

  • be necessary; this is generally taken to mean that without the planning obligation there would be sufficient reason to refuse planning permission for the development;
  • be relevant to planning and to the development and/or use of the land to which they relate;
  • relate directly to the proposed development;
  • be fairly and reasonably related in scale and kind to the proposed development;
  • be reasonable in all other respects.
• Who may enter into a planning obligation?

  Planning obligations are legally enforceable against the owner(s) (including their successors in title) of the land to which they relate. This means that generally only owners can enter into obligations (although it is possible for prospective purchasers to do so through a conditional agreement).

  Because planning obligations run with the land, all owners, part or joint owners, owners, lessees and mortgagees must be signatories. Planning obligations can have significant effects on the use (and value) of land. Before anyone enters into a planning obligation they are strongly advised to take independent legal advice.

• What form must a planning obligation take?

  A planning obligation must be executed as a deed. When it is by agreement, it will also be signed and sealed by us. It will contain covenants covering obligations the landowner:

  • agrees to do;
  • agrees not to do;

  and the circumstances and timescales within which these obligations will occur. It also contains a map or plan showing the land to which it relates.

  Where the obligations relate to works on the Highway and/or Education, Youth, Childcare and Library financial contributions, Hertfordshire County Council may also need to be a party to the planning obligation and agree its terms.

• How are planning obligations enforced?

  Planning obligations are enforceable by us:

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

  Land charges

  Planning obligations are registered as local land charges. If land is subject to a planning obligation which has not been (or is not being) complied with, the owner(s) may find:

  • the land is difficult to dispose of;
  • its value is diminished.
• Can planning obligations be lifted?

  A planning obligation may be modified or discharged:

  • at any time by agreement with us;
  • on application to us after five years or a later date specified in the obligation (this does not apply to section 52 agreements).
• Applications

  Applications for modifying or lifting planning obligations can be determined by us in one of three ways:

  • if the obligation no longer serves a useful purpose it may be discharged;
  • if it still serves a useful purpose, it shall continue in force;
  • if it would still serve a useful purpose equally well subject to proposed modifications, it may continue in force so modified.

  A form for requesting modification or lifting of a planning obligation is attached.

   Schedule Prescribed Notices and Certificates Part 1 (PDF 49.6 KB) - Notice of an application to modify or discharge a Planning Obligation under section 106a of the Town and Country Planning Act 1990.

   Schedule Prescribed Notice and certificates Part 2 (PDF 50.6 KB) - Certificate of compliance with the notification requirements in regulation 4.

• Appeals
  There is a right of appeal against our decisions through the applications process. However, it is the stated policy of the Secretary of State not to discharge planning obligations that still serve their originally intended purpose.
• The use of planning obligations in Dacorum

  In Dacorum, planning obligations are used for a wide variety of purposes including:

  • requiring housing to be used and transferred to a Housing Association as "affordable housing"
  • requiring sums for the provision of commuted sums for the provision of "affordable housing"
  • requiring infrastructure (roads, drains, etc) to be provided
  • requiring land to be dedicated and equipped as open space or playgrounds
  • requiring sums to be paid for the provision of off-site infrastructure or the long-term maintenance of open space
  • requiring sums to be paid to improve accessibility of sites by sustainable means of transport
  • requiring payment of sums for improving educational facilities, libraries, youth and childcare facilities.

  The requirement for a section 106 agreement may be triggered by a response from a statutory consultee, such as Hertfordshire County Council - for example, acting as the Highway Authority, or Local Education Authority.

  The Planning obligations guidance toolkit for Hertfordshire sets out the likely charges for improving sustainable transport and improving educational facilities, libraries, youth and childcare facilities.

• Procedure in Dacorum

  If a planning application requires a planning obligation section 106 agreement, the applicant or agent will be informed as soon as possible, usually at pre-application stage, assuming pre-application advice has been sought.

  Planning obligations can be fulfilled either through completion of a Unilateral Undertaking, where the owner/developer agrees unilaterally to make financial contributions to various infrastructure requirements, or through completion of a s106 legal agreement, where multilateral agreement is reached by all parties (for example, owner/developer, Dacorum Borough Council, Hertfordshire County Council).  

  Planning applications for anything up to five dwellings can usually be dealt with through a Unilateral Undertaking, by completing our standard template. This should be agreed with the planning case officer before being signed. Once evidence of title has been submitted and the administrative fees (£150 to Dacorum Borough Council and £75 to Hertfordshire County Council) for checking / dealing with the agreement have been paid, the application can be granted / determined.     

  Planning applications requiring section 106 agreements are determined by the Development Management Committee.

  The committee report will include suggested heads of terms for the agreement which will usually have been negotiated and agreed with the applicant or their agent beforehand.

  If the Development Management Committee resolves to grant planning permission subject to a section 106 agreement:

  • when the content of the agreement has been agreed, it will be signed and sealed by the applicant and then by the Local Planning Authority
  • once the agreement has been completed and all legal fees paid, the planning permission will be issued by the LPA.

  Planning permission will not be granted until this process is completed and the development should not be started until this has happened.

  Please note that s106 agreements are normally dealt with by our Planning Solicitor or by external solicitors appointed by us, and the owner/developer will be liable to pay our/external solicitors' legal fees for drafting and completing the agreement.

• Unilateral undertakings
  Anyone considering entering into a planning obligation unilaterally is advised to discuss the detail with us in advance. We will not be able to take into account planning obligations that are in any way defective. It is advised that unilateral undertakings should follow the format set out in the  S106 Unilateral Undertaking Model Template (PDF 233KB). Owners and developers will still be liable for our and the County Council’s legal fees in agreeing any proposed unilateral undertaking.