Introduction

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1. Introduction

Central Bedfordshire Council (CBC) is committed to ensuring that the necessary infrastructure, services and facilities are provided to support the sustainable growth and development, set out in the Adopted Local Plan 2015-2035 (adopted July 2021).

Section 17.2 and Policy HQ2 of the Adopted Local Plan commits the Council to prepare a Supplementary Planning Document (SPD) on planning obligations to provide detail about the Council’s approach to securing developer contributions in the absence of a Community Infrastructure Levy (CIL) Charging Schedule.

This guidance enables developers to understand the type and scale of planning obligation requirements from an early stage in the development process and to make appropriate provision when formulating costs and undertaking financial appraisals.

The SPD is a material consideration in the determination of planning applications and will inform pre-application discussions. This document must be read in conjunction with relevant Council policies and strategies (including emerging guidance).

The Council will expect new sustainable development to contribute to site related and other infrastructure needs through a combination of ways: planning conditions; planning obligations and Section 278 / Section 38 Agreements (relating to highways). These different mechanisms are explained in more detail below.

Planning conditions are requirements made by a Local Planning Authority (LPA) for actions to make a development acceptable in planning terms. They cannot be used to secure financial contributions but can be used to ensure that certain elements related to the development proposal, and which may benefit the wider community, are carried out.

In Central Bedfordshire such conditions are likely to cover, among other things, the requirement to undertake archaeological investigations; submission of reserved matters; and the need to carry out tree planting and drainage works. The National Planning Policy Framework (NPPF) provides guidance on the use of Planning Conditions and Obligations (see the section on Implementation for more information).

Planning Obligations, under Section 106 of the Town and Country Planning Act 1990 (as amended), commonly known as Section 106 agreements (or s106), are a mechanism for making a development proposal acceptable in planning terms, that would not otherwise be acceptable. Planning Obligations can:

• Restrict the development or use of the land in any specified way;
• Require specified operations or activities to be carried out in, on, under or over the land;
• Require the land to be used in any specified way; or
• Require a sum or sums to be paid to the authority on a specified date or dates or periodically.

Section 106 obligations can be referred to as ‘developer contributions’ and they are formal commitments given between a landowner (and subsequent owners) and the local authority. These obligations are legally enforceable.

Obligations may be financial or in kind and negotiated as part of planning applications and must be for planning purposes. A planning obligation can relate to land outside the application site which may or may not be under the control of the applicant. They are also focused on specific mitigation of the impact of the development.

Planning Obligations may be sought from housing, commercial, employment and mixed-use developments as well as minerals and waste developments.

The s106 planning obligation is a legal document, a deed, that 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 unilateral obligation or multi party agreement.

A planning obligation can specify the timing of payments and make various other stipulations. 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 or by direct action, with the recovery of expenses.

The Community Infrastructure Levy Regulations 2010 (as amended) sets out guidance on s106 and CIL, including the operation of s106 obligations and the legal tests for the use of s106 (regulation 122):

1. “Limitation on use of planning obligations 122.—

1. This regulation applies where a relevant determination is made which results in planning permission being granted for development.

2. A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is —

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.”

2a. Paragraph 2. does not apply in relation to a planning obligation which requires a sum to be paid to a LPA in respect of the cost of monitoring (including reporting under these Regulations) in relation to the delivery of planning obligations in the authority’s area, provided—

1. The sum to be paid fairly and reasonably relates in scale and kind to the development; and
2. The sum to be paid to the authority does not exceed the authority’s estimate of its cost of monitoring the development over the lifetime of the planning obligations which relate to that development.”

The CIL Regulations (Regulation 123) previously limited the pooling of contributions to no more than five obligations to fund a single infrastructure project. This restriction has been removed. However, all contributions must meet the three tests set out in bullet point 2 above.

Section 278 agreements under the Highways Act 1980 (as amended by Section 23 of the New Roads and Street Works Act 1990) are legally binding agreements between the local highway authority and the developer to ensure delivery of necessary highway works to the existing highway network. The agreements identify the financial and other responsibilities of the parties involved in the constructing works on the public highway. Section 38 of the Highways Act is used where new highways are to be created and adopted by the local authority.

If, during the assessment of a planning application, it is deemed necessary to make modifications to the existing highway to facilitate or service a proposed development, a s278 agreement will be required. Normally, these will be site access works or off-site works required to mitigate the impact of the proposed development within the wider area. More information on this can be found in Section 7.

The Community Infrastructure Levy (CIL) was introduced by the Planning Act 2008, and brought into force through the Community Infrastructure Levy Regulations 2010. Where a Local Authority has consulted on and approved a charging schedule, they are able to levy a CIL charge on new development. The money from this levy is then used to help fund infrastructure required to support development within the area. CBC does not have a CIL charge, instead using s106 or s278 for planning obligations and highway works.

Considering the proposals for a new Infrastructure Levy (IL), as set out in The Levelling Up and Regeneration Bill 2022, the Council will not pursue a CIL at this time and will instead seek to set an IL in the future.

Central Bedfordshire Council will periodically assess the need for a review of all or part of this document. A review could simply be an internal check as to whether this document is still relevant or could involve a complete rewriting (and consultation) of the document.

The need for a review could be determined by the Government’s position on the emerging Infrastructure Levy which proposes the replacement of the current system of developer contributions with a mandatory, locally determined Infrastructure Levy.

Planning applications for all site allocations and commitments will be expected to demonstrate conformity with the strategic objectives and all relevant policies set out in the Adopted Local Plan. They must also have regard to relevant guidance, such as the Central Bedfordshire Design Guide.

Planning applications for strategic housing allocations and commitments should also meet the specific requirements for strategic sites set out in Policy SP3, to ensure that good placemaking principles are embedded into new strategic developments. This is in addition to the site-specific requirements set out in the allocation policies and all other relevant policies of the Adopted Local Plan. Planning applications for small and medium sites should meet the specific requirements of Policy HA1.

The Council requires Development Briefs for strategic residential sites and masterplans for strategic employment sites prior to the submission of a planning application. Discussions about potential planning obligations may be sought as part of the development brief/masterplan process, in line with the advice in this SPD.