P7.8: Section 106 Heads of Terms

The work done in the earlier parts of the Guide process should have revealed the scope and extent of planning obligations that are relevant, necessary and importantly, capable of delivery as part of the project.

Agreeing the package of planning obligations should be led by the local planning authority’s development control function or S106 officer. This must be addressed through a collaborative process, which has wider corporate engagement. It should also ensure that all sectors and stakeholders with legitimate land use planning interests are involved in the process of identifying, (based on evidence), and setting the various requirements and contributions to be secured.

The objective of pre-application understanding and dialogue should be to review and agree on the potential package of contributions and enable a draft Heads of Terms to be submitted as of part of the application. This would enable them to be subject to public consultation as part of the application evaluation and application determination process.
 
The approach to defining the Heads of Terms should include:

• Drawing in knowledge and evidence gathered through the evidence base evaluation, design process and options testing (including viability) stages to confirm the potential scope and scale of potential planning obligations;
• Assessing the impact of the scheme and evolving measures to mitigate against them. This should not only consider the physical provision of facilities/associated works, but also issues relating to ownership, management and longer term maintenance; and
• Reviewing the policy basis for developer contributions and ensure there is a robust policy ‘need’. Many Local Planning Authorities have established policies and formulae to calculate contributions and give certainty on requirements and financial implications

The justification for the extent of obligations should primarily be set out in the Planning Statement, Transport Assessment, Infrastructure Statement and Environmental Statement. It is often necessary, where the full extent of obligations cannot be delivered, to support the justification with a financial appraisal. This is a complex and often contentious area of planning assessment, and so if this is considered appropriate it is important for the Steering Group to explore how best to take it forward through an open, transparent and accountable approach. The project steering group should be prepared to fund this work and should build independent assessment into the project costs. In ATLAS’s experience, it is not necessary for sensitive financial information, which has formed part of the assessment to be included in the application documents and subsequent committee reports.