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ITEM EX6 - ANNEX C

EXECUTIVE – 23 DECEMBER 2003

GOVERNMENT PLANNING POLICY STATEMENTS

"Contributing to sustainable communities – a new approach to planning obligations":

A consultation on proposals to reform planning obligations

References to paragraphs are to those in the Government’s consultation document.

1. Do you agree that these (para. 16) are the most significant problems with the current approach to planning obligations?

Are there others?

The issue of whether or not contributions accurately reflect the true impact of development on services and infrastructure is particularly important. Developer contributions are rarely sufficient to meet the full affordable housing and infrastructure requirements. It is therefore critical that the system helps deliver physical investment and is not simply put in place to replace Government funding of it.

One of the main problems which currently exists and appears from the proposals likely to remain is the apportionment of the contributions between the requirements of infrastructure/service provision and affordable housing.

Developers often cite economic viability as the reason for not proceeding with development schemes when faced with significant infrastructure and affordable housing requirements. This is particularly evident on brown field redevelopment.

The fact that infrastructure provision typically lags behind development -- this leads to public disillusionment with the system. This problem is not adequately addressed in the proposals.

Delays in the existing system are caused by developers/landowners as well as local authorities.

2. Do you agree that these (para 18) should be the objectives for a new approach to planning obligations?

If you do not agree, what objectives would you like to see?

Yes, these are all relevant objectives.

3. Are you aware of any examples of innovative and/or good practice in the use of planning obligations? If you are, please send information about these examples with your response.

• travel plans with mode shift targets/monitoring/delayed contributions;
• agreement giving the developer the opportunity to deliver infrastructure with a failsafe that should the infrastructure not materialize then contributions are paid to the local authority to deliver it;
• pooled planning obligations/contributions;
• index linking;
• monitoring development to check initial assumptions and reassess contributions;
• contributions levied on a per unit basis.

D. Do you agree that planning obligations should be used to seek contributions towards the range of impacts implied by case law?

If you do not agree, what do you think the relationship should be between the development and the contributions it makes?

Yes, but as information/case law progresses the range of issues that may, where appropriate, trigger contributions should be revaluated annually by ODPM to minimize discrepancies between policy and practice.

E. Do you agree that local planning authorities should set out, in their development plans, policies explaining how they will use negotiated planning obligations to secure developer contributions?

If you do not agree, would you like to see local planning authorities set out policies in another way?

Where policy could be founded in the development plans in order to retain flexibility and speed up the process the details would need to be in documentation such as Supplementary Planning Guidance as part of the Local Development Frameworks.

F. Do you agree that where possible, local planning authorities should use formulae to explain the scale of contributions they will seek towards specific areas?

Alternatively, if you disagree that the use of formulae will help achieve our objectives, can you suggest an alternative approach that will?

Formulae should be appropriate for the majority of cases, and range of obligations. There will however need to be exceptions, the provision for which will need to be explicit.

G. Do you agree that local planning authority planning obligations policies should be examined as part of the development plan process?

If you do not agree, can you suggest an alternative approach?

The development plan process is arguably too cumbersome as a mechanism for setting such things as affordable housing targets and charges. To improve the transparency, speed, flexibility, and effectiveness in helping to deliver sustainable development the use of supplementary planning guidance as part of the current and future LDF process would be appropriate.

There is a danger that in tying the detail of planning obligations and planning charges in to the development plan process that national fiscal policy inadvertently enters the planning system by a non-direct route.

H. Do you agree that, in some circumstances, local planning authorities should be able to use planning obligations to secure ongoing contributions?

And if you disagree, can you suggest an alternative approach that could help both the affordability of contributions and help manage risk?

If the question refers to recurring payments such as maintenance of infrastructure the need for which arises from the development, then yes. This should apply for example to schools, libraries, subsidised public transport services and costs of transporting children to school from remote areas.

If the question refers to the deferral or phasing of contributions beyond the implementation of the development, then yes. We already accommodate developers’ needs in tailoring the payments (suitably index linked).

The security of future payments (e.g. by bonding) needs to be adequately addressed in the agreements. If extended to the planning charge then the security of payment becomes a very key issue.

I. Do you agree that voluntary pooling of Section 106 contributions should be encouraged where this can help meet the needs of the new development and the local community?

If you disagree, can you suggest an alternative approach that could enable developers to contribute towards larger projects where the contributions that are needed are greater than those that could reasonably be secured from one development or authority?

This question appears to cover two issues …

- the pooling of contributions between authorities:

This should be allowed by agreement between the relevant authorities including the service provision/statutory authorities (eg education and highway authorities as well as the LPA); and

- between differing developments within an authority:

This already takes place to a significant degree and is recognised in paragraph B13 of 1/97.

The definition of the "local" community needs to be understood and the relatedness of the contribution (whether it be via a planning charge or legal agreement) to the development and its use needs to be reasonable.

The limited viring of contributions between areas and uses could be exploited to deliver the infrastructure earlier, but this would require mechanisms to eliminate risk to future programmed planning charges by the infrastructure having been provided early.

If money is paid through the planning charge to district councils to fulfil meet the costs of providing specific infrastructure (eg transport), the element of the payment appropriate for transport will need to be passed to the highway authority otherwise the highway authority’s discretion could be fettered (eg in scope/design etc) in applying the contribution.

J. Do you agree that local planning authorities should use standard heads of terms and clauses for negotiated planning obligations?

• speedy production of first drafts and subsequent negotiation of additional provisions;
• consistency and equality of treatment for all applicants;
• consistency renders implementation of agreement more effective and efficient.

K. Do you agree that local planning authorities should consider bringing in additional resources and that this could help reduce delays?

If you agree, do you also agree that they should be able to ask the developer to pay for this faster service through the s106 agreement?

If you disagree with the proposal, can you suggest an alternative approach that will help reduce delays?

Yes, agreed.

But some delays are caused by developers/landowners rather than local planning authorities. Consultants if brought in would be heavily reliant on council staff at the outset therefore little saving in time at the outset but increased costs.

It is considered legitimate to require a developer to pay for negotiation and monitoring of a S106. Local authorities should be able to use such funds to augment and improve the planning obligation service.

L. Do you agree that both local planning authorities and developers should consider using expert mediators to help resolve disputes?

If you disagree, can you suggest an alternative mechanism to help resolve disputes?

If planning obligations policy and advice was kept up to date and relevant (see above) any necessity for expert mediators would be reduced. The planning inspectorate carry out this service to a large extent.

Would mediation be binding? Raises issues of its own eg independence.

Mediation is already available and provided for within some agreements (ie after agreement has been reached). A list of approved experts would be helpful.

M. Can you suggest any additional measures that could help reduce delays sometimes associated with negotiated planning obligations?

• evidence of title (we have a title questionnaire);
• developer to provide security for legal/administration costs from the outset (possibly standard £400? initial charge upfront rather than awaiting solicitor’s undertaking);
• agreed Heads of Terms;
• open book approach if economic viability is an issue. Developers may need to fund an independent expert to verify economics.

N. Do you agree that the optional planning charge should be used to secure the same range of contributions as negotiated planning obligations?

If you don’t agree, what do you think an optional planning charge should cover?

Not necessarily so. How would a charge address securing the land for community infrastructure?


O. Do you agree that local planning authorities should set out the basis for the new optional planning charge in their development plans?

If you disagree, who should set out the basis for the charge?

In the initial stages (years) the process will be long winded and costly. The policy foundation should be in the development plans, however the details of the charges would be best addressed through supplementary planning guidance. It would therefore be easier to update the details of the charges and retain their relevance to a changing environment.

P. Do you think there should be different levels for some types of land or development?

If you agree, do you think the charge should be set at different levels for brownfield and greenfield, and for residential and commercial development? Or can you suggest a different approach?

Yes. The planning charge should be able to be structured to accommodate a variety of development scenarios within the broad demarcations of residential and commercial development. The levels of charge will need to be able to reflect local circumstances and be able, if locally it is considered appropriate, to distinguish between brownfield and greenfield proposals. Although time consuming at the outset, this will enable tailored planning charges to reflect the increased demands.

This would however need to ensure that the overall planning charge could provide the necessary community infrastructure and affordable housing.

Q. Do you think local planning authorities will be able to set charges that take into account all likely impacts of development on sites identified in the development plan?

No, an overall charge would be too cumbersome. Apart from the non-financial aspects of the infrastructure requirements, which will need to be secured through negotiated agreement there will be a strong likelihood of evolving needs which may need to be very locally focused to address the particular needs of a site.

For example although a development’s immediate access needs could be addressed in an agreement (S278 including maintenance costs) the need to fund an off-site highway improvement (e.g. pelican crossing) would require funds to be secured for the provision. This level of detail would not be picked up in a planning charge. The local authorities would therefore need to retain the ability to secure via agreements financial contributions above and beyond the planning charge.

R. How do you think local planning authorities should secure affordable housing contributions as part of the optional planning charge?

As a financial contribution?

As an in-kind contribution, including on site?

As a combination of both?

And should local planning authorities be given the flexibility to decide which option best meets local needs, or do you think they should be restricted to using only your preferred option?

The local planning authorities should have the ability and discretion to secure affordable housing by all the options. The planning charge though will not on its own deliver the likely level of housing required, Government funding mechanisms will need to play their vital part as well.

S. Do you agree that the amount payable under a new charge scheme should vary according to this size of the development?

If you agree, do you agree that the amount payable should be calculated per unit for residential and by floorspace for commercial? Or can you suggest a better alternative?

Pro rata charges would be appropriate.

The charges would need to be amalgamated from a variety of elements.

T. Do you agree that the charge should only apply to sites identified in the development plan?

If you agree, how do you think the local planning authority should respond to applications on windfall sites or other sites outside the plan?

No, charges should not only apply to sites in the development plan. Many if not most windfall sites cannot be identified in advance.

There may be a case for windfall and other sites to have the choice to opt for a planning charge removed as those sites would add to the assessed demands which may result in increased major infrastructure being required, unless the initial assessments were allowed to factor in an extra provision for windfalls.

U. Do you agree that local planning authorities should be able to pool planning charge contributions, provided they have clear policies explaining how the contributions will be used as set out in their development plans?

Pooling should be permitted; however, the details of the apportioning would be better addressed as supplementary planning guidance as part of the local development frameworks.

V. Do you agree that local planning authorities should be able to spend the receipts from the planning charge only on those elements specified in the local development plan? If not, how much flexibility do you think there should be in how the receipts are spent?

Planning charges should be able to be vired to provide infrastructure in the most efficient and effective way. Supplementary planning guidance should be used to tailor the spreading of the receipts. Such SPG would need to take account of competing demands for expenditure.

W. Do you agree with our view that, although the charge is less flexible than negotiated planning obligations, the developer’s right to choose to negotiate will ensure the overall approach is still sufficiently flexible to adapt to the needs of individual developments?

No.

The right to choose the charge should not be left solely to the developer. It would be prudent for the local planning authorities to declare for which type of development (e.g. by scale and or type etc) planning charges would be relevant. The use of planning charges should be at the discretion of the infrastructure and service providers. Developers where given the opportunity by the local authorities should be then able choose.

X. Do you agree that once a developer has chosen to pay the charge, they should not be asked to make additional financial contributions through a Section 106 agreement?
If you disagree, when should local planning authorities be able to seek additional negotiated contributions and what could these contributions cover?