PAPER C
SCRUTINY COMMITTEE FINAL REPORT
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RESPONSIBLE BODY Scrutiny Committee |
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ENQUIRY NAME Planning gains and obligations |
REFERENCE NUMBER SC03/06 |
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1
OUTLINE OF ENQUIRY AND PROPOSED OUTCOME The
scoping document approved by the Scrutiny Committee at its meeting on To investigate the extent to which
the use of different devices can be used to deliver planning gains and
obligations; To identify actions that should be
taken to ensure that any impact on the overall needs of the
area are taken into account when determining planning consent. |
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2
RECOMMENDATIONS 2.1
A dedicated Section 106 Officer be appointed
as a matter of urgency, on a self funding basis possibly funded through top
slicing of planning application income or utilisation of monies received
through Section 106 Agreements, and this post be an additional post within
Development Control. 2.2
Immediate action be taken by the Cabinet Member for Environment,
Planning and Transport together with the Director of Regeneration and
Development to identify the monies currently held by the Council in respect
of Section 106 agreements to ensure that these are fully utilised for the
benefit of the community in accordance with agreed timescales and that monies
yet to be paid are clearly earmarked for sustainable projects. 2.3
The draft Supplementary Guidance on Planning Gain be updated and a
consultation exercise be undertaken leading to formal adoption within three
months. 2.4
The level at which Planning Obligations should be triggered in
respect of residential units be lowered to 5 from the current 10, in the
immediate term, with consideration given to the implications of including
Planning Obligations for all applications. 2.5
An evidence based approach to developer contributions be adopted and
publicised appropriately so that developers are aware in advance of likely
requirements. 2.6
The Council adopt the model Section 106 Agreement produced by the
Department for Communities and Local Government. 2.7
Development Control Officers should be involved at an early stage
with developers to enable major planning applications to be processed within
the requirements laid down nationally. Consideration should be given as to
whether this should be on a fee paying basis. 2.8
Senior Officers in other Directorates involved in advising on obligations
arising from planning applications should meet on a six monthly basis to
review the processes and methodology for seeking contributions towards these. 2.9
A quarterly monitoring report be submitted
to the Development Control Sub Committee on progress with the delivery of
Planning Obligations. |
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3
BACKGROUND TO
THE ISSUE 3.1
The effective negotiation, management and
monitoring of agreements related to planning obligations arising from major
planning applications plays an important role in mitigating the effects on
developments across the Island. Such development can have an immediate effect
on the existing infrastructure. To ensure delivery of an appropriate and balanced
contribution to the Island’s social, transport and economic infrastructure
from the granting of planning consent the Scrutiny Committee believed that an
enquiry should be undertaken to look at the Council’s performance in
achieving reasonable contributions to developments and how this can be made
more effective and efficient. 3.2
A Planning Obligation, or Section 106 Agreement is defined in ODPM
Circular 05/2005 as “private agreements negotiated, usually in the context of
planning applications between local planning authorities and persons with an
interest in a piece of land (or developers) and intended to make acceptable
development which would otherwise be unacceptable in planning terms”. 3.3
Such a planning obligation can either take the form of a facility
provided by the developer or a payment in lieu of providing a facility which
is then utilised by the local authority within an agreed timescale. 3.4
This process would involve housing developments of 10 or more units
or commercial developments of 1000m2 and over. 3.5
Planning gain can include :- ·
Affordable Housing – either provision on site or financial
contribution to facilitate provision at a more appropriate site; ·
Highways – road improvements, traffic management, Green Travel Plans; ·
Education – contributions to extensions at nearby schools; ·
Leisure – open space or play facilities on site or in the area; ·
Art – provision within the development area. 3.6
It is important to understand that planning permission cannot be
bought on the basis of the content of a planning obligation offered by a
developer. To ensure that Section 106 agreements are used correctly there are
5 tests that must be complied with. A planning obligation must be – ·
Relevant to planning ·
Necessary to make the proposed development acceptable in planning
terms ·
Directly related to the proposed development ·
Fair and reasonably related in scale and kind to the proposed
development ·
Reasonable in all other aspects. 3.7
In a report by the Council’s Internal Audit Section in July 2005 a
number of recommendations were made in relation to how the Section 106
process was managed and monitored to ensure that the Council obtained maximum
benefit. The report also noted that a draft Supplementary Guidance on
Planning Gain had been prepared. This was to provide firm guidance on the
Council’s requirements for planning gains for all those involved including
the levels of contributions. 3.8
Consideration was given to the outcomes of the Best Value Review of
Planning Services, undertaken in November 2003, and the Audit Commission
Inspection Report for Planning Services in December 2004 insofar as they
related to Planning Gains and Obligations. Whilst some progress had been made
on a number of weaknesses that had been identified in both reports this had
not been sufficient to have the impact that ensures consistent benefit to the
Island’s community. 3.9
One of the actions that was implemented
related to a quarterly monitoring report to the Development Control Sub
Committee. Unfortunately this was not sustained and reports were only
submitted on two occasions – 3.10
The work of the Task Group was greatly assisted by the publication of
four reports by the Audit Commission in August 2006 and one report in May
2006 and two in July 2006 by the Department for Communities and Local
Government all relating to Planning Obligations and Section 106 Agreements. Included
within the Audit Commission reports was a Corporate Awareness Checklist on
Improving Performance on S106 Agreements together with a Value for Money Self
Assessment Guide. This was completed by Planning Officers and assisted the
Task group in highlighting areas where there were gaps in knowledge of
current performance and practice, where performance could be improved and
barriers that were preventing improvement. 3.11
The Scrutiny
Committee’s enquiry into Development Control Sub Committee Reports, SC01/06
stated – “A number of major applications involved complex
issues. Already the Council was not performing to the nationally set Best
Value Performance target over a sustained period. If insufficient information
was not contained in the Committee report then this could impact on the
length of time it took to determine the application. It was considered
however that details of any form of planning gain, particularly a Section 106
Agreement, should be included in the Committee report after details of
planning considerations. This is so that it did not look like permission was
being “bought” by the developer. It was considered that a pro-forma statement of
the Councils Section 106 expectations should be issued to developers at the
pre-application stage. This expectation should be included in the report to
the Development Control Sub Committee along with that achieved or offered in
order that members are aware and may discuss reasons for deficiencies if
any.” 3.12
The Committee’s enquiry into Development
Control Speed of Determination, SC02/06, stated – “Delays occur with major
applications where conditions of an Section 106
Agreement was required as part of the planning approval. In addition to negotiating with applicants
and agents there was an urgent need to ensure that the implementation and
control of any payments or conditions were closely monitored. It was noted
that in some authorities a specialist post dealt with the full range of
matters associated with such agreements. Such a person need not be a planning
officer and the cost of this post could well be self financing as part of a
Section 106 Agreement.” |
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4
KEY ISSUES
IDENTIFIED 4.1
There is a need to have two clear courses of action. The first is to
have a clear, robust and corporate framework for planning obligations. The
second is to support the work involved and ensure that planning obligations
are fully monitored. 4.2
There has been a number of draft S106
protocols produced to provide a robust guideline for negotiation with
developers. Unfortunately none of these drafts have ever been published for
public consultation. It is important that a protocol is reviewed in the light
of the Council’s Corporate objectives so that any
contributions are in line with these. This will ensure that Section 106
contributions are channelled towards appropriate and justified infrastructure
improvements. 4.3
Developers are aware that there is no requirement for a Section 106
Agreement if they phase residential development so it involves less than 10
units. The Council can therefore lose out on the provision of facilities for
the community. A developer can be responsible for a number of small sites
across the 4.4
Section 106 Agreements can slow the planning process down. It is
important to have a standard agreement available to developers at an early
stage. The publication by the Department for Communities and Local Government
in July 2006 of a model agreement is welcomed and should form the basis for
the Council’s own version. It will be necessary for officers to demonstrate
why such a model cannot be utilised or substantial changes required. 4.5
The introduction of a draft standard agreement, which is readily available
to developers, should aid pre-application discussions and assist in speeding
the process alongside the determination of the planning application so that
the national targets are met. A large amount of time can be spent by officers
in pre-application discussions on major developments. This time is not
charged for and can involve officers in time consuming work for which no
income is generated. 4.6
The completion of a Section 106 agreement was a barrier to achieving
the national target for dealing with major planning applications. The speed
of determination was the subject of an enquiry by the Scrutiny Committee. The
final report was submitted to the Scrutiny Committee on 4.7
Due to the workloads of staff within the Development Control Section,
an issue highlighted in the Scrutiny Committee’s enquiry SC02/06, there is
insufficient resources to manage and monitor planning gain requirements. A
dedicated officer could be appointed, on a self funding basis from monies
received for Section 106 Agreements or top slicing of income generation from
planning fees, to enable more effective pre application discussions to take
place with developers on planning obligations. The officer would also closely
monitor the use of monies received so that these are fully utilised for the
benefit of the community. It is also vital that such a post is in addition to
the existing staffing levels within Development Control. 4.8
The Scrutiny Committee is concerned that there appears, from the
current financial information produced by the Chief Financial Officer, that some
of the contributions from developers are not being fully utilised within
agreed timescales by the relevant Directorate. There is also a lack of
clarity over how some of the monies received under Section 106 Agreements have
been utilised due to insufficient detail being provided by Directorates when
the payments are made, and there should be a proper follow-up procedure put
in place to ensure that all such monies due to be received by the Council are
actually received in accordance with the timetable set out in each agreement. 4.9
There is a lack of an agreed updated published Supplementary Guidance
(SPG) on Planning Gains. This does not allow for the transparency required to
enable a clearer understanding of the Council’s requirements in advance of
any proposed development. The availability of such a SPG will ensure that
there is seen to be a consistent approach and assist in the earlier
completion of Section 106 Agreements. 4.10
The Guidance needs to incorporate a consistent and transparent tariff
for planning obligations. To achieve this officers
from relevant Directorates need to meet to formulate how arrangements should
be processed for securing, delivering and monitoring planning obligations.
Officers need to have a clear understanding of the Council’s Corporate Objectives
and what infrastructure is necessary to deliver these in the community. It is
understood by the Scrutiny Committee that there is already an officer group
in existence dealing with the 4.11
It is
recognised that land values determine the viability of any development. In
seeking contributions from developers there is a clear impact on development
costs. Developers will attempt to argue that contributions towards planning
obligations will lead to their development becoming unviable. This requires
submission of detailed financial assessments to the Council to ascertain
viability. 4.12
The Council’s Policy Commission for Care, Health and Housing was
conducting a policy review of affordable housing and this was due for
completion in February 2007. It was not therefore appropriate for the
Scrutiny Committee to duplicate any of this work. However it is necessary to
reinforce the importance of ensuring the consistent delivery of affordable
housing in planning obligations. The Economic Appraisal Tool, developed by
consultants GVA Grimely & Bespoke Property Group, could be used to assist
in negotiations for the inclusion of affordable housing in Section 106
Agreements. |
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The Best Value
Review of Planning Services Report and Action Plan from November 2003. The Audit Commission
Inspection Report of Planning Services dated December 2004 and the subsequent
Improvement Plan considered by the Council’s Executive at its meeting on Unitary
Development Plan and Local Development Framework. ODPM
Consultation Paper on Planning Obligations. Review
of Housing Supply – Kate Barker for HM Treasury – March 2004 Monitoring
report on Section 106 Agreements. 1)
Scoping document for enquiry SC03/06 as agreed
at the 2)
Report to the Development Control Sub
Committee on 3)
Extract from Final Accounts 2005-06 as
considered by the Audit and Performance Committee on 4)
ODPM Circular 05/2005 – Planning Obligations –
http://www.communities.gov.uk/index.asp?id=1500145 5) IDeA Section 106 – Planning Obligations – Criteria for Evaluating/prioritising SDP List of Schemes. 6)
Two examples of planning approvals on the 7) Link to Maidstone Borough Council’s Overview and Scrutiny Committee Review into Planning Obligations http://www.cfps.org.uk/reviews/item.php?mainID=5&issue=5&itemid=1282 8)
Internal Audit Report to the Audit Committee 9) Extracts from the Best Value Review Report and the Audit Commission Inspection relating to Section 106 Agreements. 10)
Audit Commission Press Release – 11) Audit Commission Report – Securing Community Benefits Through the Planning Process – August 2006 - http://www.audit-commission.gov.uk/planning/s106.asp?page=index.asp&area=hped 12) Audit Commission Report – Route Map to Improved Planning Obligations – August 2006 - http://www.audit-commission.gov.uk/planning/s106.asp?page=index.asp&area=hped 13) Audit Commission Report – Value for Money Self-Assessment Guide – August 2006 - http://www.audit-commission.gov.uk/planning/s106.asp?page=index.asp&area=hped 14) Audit Commission Report – Corporate Awareness Checklist – August 2006 - http://www.audit-commission.gov.uk/planning/s106.asp?page=index.asp&area=hped 15) Department for Communities and Local Government – Planning Obligations : Practice Guidance – July 2006 - http://www.communities.gov.uk/index.asp?id=1500820 16)
Department for Communities and Local
Government – Valuing Planning Obligations in 17) Model Planning Obligation – Section 106 Agreement – Issued by the Department for Communities and Local Government - July 2006 - http://www.communities.gov.uk/index.asp?id=1500832 |
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Prepared by: Date: |
Cllr April West & Paul Thistlewood, Overview &
Scrutiny Team November 2006 |