S.106 Agreements

Legislation

Planning obligations under Section 106 of the Town and Country Planning Act 1990 (as amended), commonly known as S106 agreements, are a mechanism which make a development proposal acceptable in planning terms, that would not otherwise be acceptable. They are focused on site specific mitigation of the impact of development. S106 agreements are often referred to as 'developer contributions' along with highway contributions and the Community Infrastructure Levy.

The common uses of planning obligations are to secure affordable housing, and to specify the type and timing of this housing; and to secure financial contributions to provide infrastructure or affordable housing. However these are not the only uses for a S106 obligation. An S106 obligation can:

  1. restrict the development or use of the land in any specified way;
  2. require specified operations or activities to be carried out in, on, under or over the land;
  3. require the land to be used in any specified way; or,
  4. require a sum or sums to be paid to the authority on a specified date or dates or periodically.

A planning obligation can be subject to conditions, it can specify restrictions definitely or indefinitely, and in terms of payments the timing of these can be specified in the obligation.

If the S106 is not complied with, it is enforceable against the person that entered into the obligation and any subsequent owner. The S106 can be enforced by injunction.

In case of a breach of the obligation the authority can take direct action and recover expenses.

The planning obligation is a formal document, a deed, which states that it is an obligation for planning purposes, identifies the relevant land, the person entering the obligation and their interest and the relevant local authority that would enforce the obligation. The obligation can be a unitary obligation or multi party agreement. The obligation becomes a land charge.

The legal tests for when you can use a S106 agreement are set out in regulation 122 and 123 of the Community Infrastructure Levy Regulations 2010 as amended. They are also contained in the National Planning Policy Framework (NPPF).The tests are:

  1. necessary to make the development acceptable in planning terms
  2. directly related to the development; and
  3. fairly and reasonably related in scale and kind to the development.

S106 Agreements and CIL

The Community Infrastructure Levy (CIL) has not replaced Section 106 agreements. However, the introduction of CIL has resulted in a tightening up of the S106 tests. S106 agreements should be focused on addressing the specific mitigation required by a new development, whereas the CIL has been developed to address the broader impacts of development. There should be no circumstances where a developer is paying CIL and S106 for the same infrastructure in relation to the same development.

Planning and Affordable Housing Supplementary Planning Document (SPD)

Our adopted Planning Obligations and Affordable Housing SPD sets out Chichester District Council's proposed policy for securing developer contributions. It assists prospective developers to identify the likely infrastructure costs associated with the development of a particular site in the area covered by the Chichester Local Plan. The SPD is an important material consideration in determining planning applications.

Section 106 and CIL Protocol

Chichester District Council has an protocol which explains the S106 negotiation process and how contributions are managed, processed and monitored to bring about local community benefits. It also explains the way the CIL is managed and monitored.

Search for planning obligations

Existing S106 Agreements can be found online under the planning application reference using our public access system . Electronic copies of completed S106 Agreements are available along with the other application documentation.

Legal Fees

The Government's Circular 05/2005 (Para B50) advises Local Authorities to carefully monitor all legal agreements. We charge a legal fee for the preparation, checking and production of S106 Agreements and Unilateral Undertakings.

S106 Monitoring Fees

The fees below are for financial year 2017/2018 and will be reviewed each year and updated (if required) on 1 April each year.

Fees for development type

Development type/ Size threshold

Fee
Single dwelling/annexe£148
2-9 dwellings£296
10-20 dwellings£769
21-50 dwellings£1,538
50+ dwellings£4,642
Commercial£769
Other non-residential£769