Agenda item

REPORT OF THE DEVELOPMENT AND CONSERVATION MANAGER

 

To provide an annual update on the details of the current Section 106 agreements and Unilateral Undertakings within the wards/parishes in the area and provide an update on the relevant legislation.

RESOLVED:

 

(1)       That the contents of the report entitled Section 106 and Unilateral Undertakings be noted;

 

(2)       That the Development and Conservation Manager be requested to continue to present a report regarding Section 106 and Unilateral Undertakings to the Area Committees on an annual basis and that the appendix to those reports note which funds are discretionary and which are for a specific project;

 

(3)       That other than where a contribution has been negotiated for a specific purpose or project, any proposal be reported to this Committee by the Communities Officer for comment and/or agreement prior to any commitment of funds;

 

(4)       That the Development and Conservation Manager be requested to draw up a list of all unallocated discretionary Section 106 funds available for the Letchworth area and that this list be circulated to all Members of the Committee by email.

 

REASON FOR DECISION:

 

(1)       To ensure that there is a robust system for negotiating and managing Section 106 and Unilateral Undertakings.

 

(2)       To ensure that this is kept under constant review and that the risk associated with this activity is managed in an appropriate manner.

The Development and Conservation Manager presented the report entitled Section 106 and Unilateral Undertakings and drew attention to the following;

 

On Monday the government published a draft new version of the National Planning Policy Framework which is now out for consultation.

 

This was a consultation document and it did not replace the current National Planning Policy Framework, which was published in 2012.

 

In general, having briefly looked at the new draft it was very similar to the existing NPPF but with more emphasis on the importance of housing delivery.

 

On the issue of planning obligations and Section 106 there was very little to report.

 

In terms of planning policies, the draft NPPF stated in paragraph 34 that:

 

“Plans, meaning Local Plans, should set out the contributions expected in association with particular sites and types of development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, green and digital infrastructure). Such policies should not make development unviable and should be supported by evidence to demonstrate this. Plans should also set out any circumstances in which further viability assessment may be required in determining individual applications.”

 

This was the only paragraph which referred to what should be put in the Local Plan regarding planning contributions.

 

Members should be aware that the current Supplementary Planning Document regarding Section 106 was 12 years old and this would be updated after the NHDC Local Plan had been though the examination.

 

In respect of development management decisions on individual planning applications the draft NPPF maintained the strict tests on the use of planning obligations set out in the existing NPPF and also set out in the report at Paragraph 8.1.1, which was that planning obligations should only be used when they are;

 

a) necessary to make the development acceptable in planning terms;

b) directly related to the development; and

c) fairly and reasonably related in scale and kind to the development.

 

On the much publicised matter of stopping developers getting away with avoiding their obligations, particularly on affordable housing, in his view the NPPF was quite weak, particularly when you consider that Ministers have been stating that developers will now be forced to deliver the necessary infrastructure and obligations.

 

Paragraph 58 of the draft NPPF stated:

 

“Where proposals for development accord with all the relevant policies in an up-to-date development plan, no viability assessment should be required to accompany the application. Where a viability assessment is needed, it should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”

 

This meant that developers would no longer be able to label viability tests as confidential.

 

It then referred to the National Planning Practice Guidance which included details of standardised viability appraisals. The idea behind this was to standardise how viability appraisals are calculated in order to try and de-mystify the process and prevent sharp practices whereby developers pull the wool over the eyes of planning authorities and claim poverty to avoid meeting their obligations.

 

However even with a standardised approach, it would not avoid disagreements between what a planning authority wanted a developer to deliver and what they claimed the development can afford. With the continued emphasis on the need to deliver new homes, the Development and Conservation Manager could not see there being much shift of emphasis away from the interests of developers towards sometimes costly community infrastructure.

 

Disappointingly there was no reference to any consideration of removing the rule of five pooling limit which is referred to in Paragraph 8.2.1 of the report.

 

Also, with the same tests set out in the existing NPPF, there was no suggestion of a move back to the tariff approach, which NHDC adopted between 2006 and around 2014.

 

This meant that new financial contributions through Section 106 obligations could only be spent on projects identified in advance and specified within the legal agreement at the time that planning permission was granted.

 

If this Council wanted to revert back to a more general tariff approach, a Community Infrastructure Levy (CIL) would need to be adopted in the future.

 

The Development and Conservation Manager expressed concern that the Council had not yet identified how they wanted the lager development areas, identified in the Local Plan, to function and how services would be funded or who would operate them. The Council needed a new Planning Obligations SPD to address these issues.

 

Members were concerned that the local Councillors should be consulted regarding any potential projects relating to a development prior to any Section 106 agreements being negotiated and queried whether this was addressed in the Local Plan documents.

 

The Development and Conservation Manager advised that, at present, the new Local Plan did not have supplementary planning documents that went into hat level of detail and reminded Members that Section 106 obligations could not be imposed on developments of less than 10 dwellings.

 

He expressed concern that the Council had not yet decided how such issues as green space and play areas provided by new developments would be maintained. As an example, he drew attention to the large potential development site in Baldock, which had a large country park in the centre of it and questioned who would maintain this and how this would be incorporated into a Section 106 agreement.

 

The Communities Officer reminded Members that this subject was discussed at the meeting of this Committee held on 6 September 2017 for which the Minutes read:

 

“The Chairman led a discussion regarding developing a list of capital projects for Section 106 funding in the future.

 

She reminded Members of the presentation from the Development and Conservation Manager regarding Section 106 funding and that, in future negotiations for Section 106 contributions would centre on previously identified projects.

 

It was therefore suggested that the Committee identify projects that could be used by the Development and Conservation Manager when negotiating Section 106 contributions from future planning applications.

 

Members debated that it would be helpful to know where developments would take place in order to suggest projects and noted that a list of proposed developments was circulated to all Members each week.

 

Members were advised that the suggestion was to develop and maintain a “wish list” of potential projects that the Planning Control Department could use if a relevant development application was made.”

 

Members acknowledged that the draft Local Plan identified where developments would likely take place and therefore could start identifying projects for those areas.

 

Members noted that a significant amount of discretionary Section 106 funding, collected from previous developments, remained unspent.

 

They referred to the discussion held on the previous item on the agenda regarding the monies for sustainable transport and queried which entries related to the provision of cycle racks.

 

The Development and Conservation Manager listed the various contributions that had been identified for this project and there was still funding available for sustainable transport.

 

Members queried why funding for Letchworth had been allocated to John Barker Place, Hitchin without reference to this Committee.

 

The Development and Conservation Manager advised that off-site affordable housing contributions, could be spent anywhere on the District.

 

Members queried the amount of £5,692.71 allocated to the provision of new football changing pavilion at Baldock Road Recreation Ground.

 

The Development and Conservation Manager advised that this sum had been allocated to this project but had not been spent.

 

It was suggested that, in order to facilitate discussion regarding the spending of available Section 106 funding, the Development and Conservation Manager be requested to draw up a list of all unallocated discretionary Section 106 funds available for the Letchworth area and that this list be circulated to all Members of the Committee by email.

 

Following much debate, it was also suggested that Recommendation 3 be amended to read:

 

“That other than where a contribution has been negotiated for a specific purpose or project, any proposal be reported to this Committee by the Communities Officer for comment and/or agreement prior to any commitment of funds.”

 

RESOLVED:

 

(1)       That the contents of the report entitled Section 106 and Unilateral Undertakings be noted;

 

(2)       That the Development and Conservation Manager be requested to continue to present a report regarding Section 106 and Unilateral Undertakings to the Area Committees on an annual basis and that the appendix to those reports note which funds are discretionary and which are for a specific project;

 

(3)       That other than where a contribution has been negotiated for a specific purpose or project, any proposal be reported to this Committee by the Communities Officer for comment and/or agreement prior to any commitment of funds;

 

(4)       That the Development and Conservation Manager be requested to draw up a list of all unallocated discretionary Section 106 funds available for the Letchworth area and that this list be circulated to all Members of the Committee by email.

 

REASON FOR DECISION:

 

(1)       To ensure that there is a robust system for negotiating and managing Section 106 and Unilateral Undertakings.

 

(2)       To ensure that this is kept under constant review and that the risk associated with this activity is managed in an appropriate manner.