Your guide to planning

Section 106 agreements are legal agreements that are often used on major and complex applications to secure public benefits (planning obligations) from applicants that are necessary to make the proposed development acceptable.

There are a wide range of on-site public benefits that are secured as planning obligations via Section 106 agreements, but benefits that are frequently secured in this way include affordable housing, public open space and various financial contributions (such as biodiversity net gain and North Meadows Special Area of Conservation).

For example, following the introduction of the Community Infrastructure Levy in 2015, we can no longer secure open space, sports provision or play space outside of the development site through a S.106 Agreement.

We can continue to secure open space, sports and play facilities on the development site but any off-site open space, sports or play facilities would be funded via the collection of a financial contribution from relevant development towards provision of these facilities across the district under the Community Infrastructure Levy.

The Community Infrastructure Levy (CIL) means developer contributions (outside of set areas) are used for off-site facilities like community buildings, roads and education, with a proportion of the monies collected specifically set aside for Parish Councils to decide how it should be spent.

Section 106 monitoring fees

Local planning authorities ensure planning obligations are monitored, for which a fee is charged which is 5% of the value of the obligation.  These are calculated on a bespoke basis for large developments.

A Section 106 planning obligation may be changed (Deed of Modification). Planning contributions may be modified at any time by a Deed between the council and all parties to the agreement. The council may decide to:

• continue the planning obligation without modification
• discharge it, if it no longer serves a useful purpose
• if it continues to serve a useful purpose, but would serve that purpose equally well if it had the modifications applied for, then to allow the modifications, provided it does not place any burden on a third party

Where the council decides not to allow a change, and the agreement has been in existence for 5 years or more, the applicant may appeal.

How to apply

Requests to vary a Section 106 should be submitted by email to sbcdc@swindon.gov.uk.

We will need:

• a supporting statement or letter explaining why you’d like to change the agreement
• a name and address of all owner(s) including confirmation that they agree to the changes
• the full address of the property including postcode
• the name and contact details (including email address and phone/mobile number) of your solicitor
• your own contact details (including email address and phone/mobile number) for the purpose of forwarding to our legal services
• details of the original obligation (date and planning reference)
• a plan showing the area covered by the obligation
• an undertaking to meet the council’s legal costs

The request and documents will be published on the council’s website for public viewing.

Fees

• Modification or removal of Section 106 obligation:
  • Householders, others and minor developments £462 + VAT
  • Major developments £924 + VAT
• Minor change of a Section 106 to bring an agreement up to date with mortgage lenders criteria or to reflect shared ownership/equity changes £138.60 + VAT
• Advice on whether changes should be made to a Section 106 obligation £138.60 + VAT
• Desktop review and informal letter setting out compliance with Section 106 obligations (formal confirmation would be through a certificate of lawfulness) £138.60 + VAT per property

Payment of the above fee should be made at the same time as the request. The fees are reflective of the planning officer costs associated with responding to your request. Please note that they do not include the council's legal costs, which will be separately calculated by our solicitors.

They also do not include any third-party specialist advice that the council may reasonably need to procure to independently assess your proposed variation (such as viability advice). Where third party specialist advice is required, it will continue to be the expectation that the applicant will meet the costs incurred by the council.

Timescales

You should allow 3 to 6 months for negotiation of revisions to an original S106 agreement.

Timescales will be reflective of the complexity of the original S106 and the proposed variations and will need to be estimated on a case by case basis.

A person bound by a section 106 agreement (usually the land owner) can apply to have the obligation formally discharged.

We use the same information, fee and process to consider these requests as set out under ‘Varying a Section 106 Agreement’. However, we will need the following additional information:

• Discharge of financial contributions – confirmation of the amount and date the payment was made to the Council including any indexation
• Discharge of non-financial obligations - supporting evidence of compliance including site photographs or other proof

The request when received will be placed on the council online planning database.

The council will discharge the obligation if it no longer serves a useful purpose. Once we are satisfied that the s106 requirements are met or no longer needed, you will be provided with a letter of confirmation.

Funding sources

Community Infrastructure Levy (CIL) and S106 planning obligations are separate infrastructure funding sources.

S106 agreements address site-specific mitigation required to make a new development acceptable in planning terms. Whilst CIL addresses the broader impacts of the development.

Some developments may have both CIL liability and S106 obligations. But there should be no circumstances where a developer is paying CIL and S106 for the same infrastructure in relation to the same development.

How CIL works

The Council adopted a Community Infrastructure Levy (CIL) Charging Schedule in 2015.

CIL is effectively a tax on new development and is charged per square metre of new floorspace.

Across the Borough there are different charging zones within which different rates apply.

Exemptions and reliefs apply in certain specific circumstances.

Strengths of CIL

S106 agreements will continue to be used to:

• secure affordable housing
• mitigate site-specific issues
• secure Biodiversity Net Gain
• support North Meadows Area of Special Mitigation

It is flexible which means it can be used for any infrastructure in the district that is included on an approved list (Regulation 123 list). It does not have to be directly related to any developments.

It is reliable which means it is effectively a tax on development and is not therefore subject to negotiation.

It is transparent so the charge rate is known in advance.

CIL applies to all residential planning approvals for one or more dwellings (whereas Section 106 agreements can only be agreed for approvals of 11 or more dwellings).

For most schemes, CIL will have to be paid within 60 days of commencement of the development (thereby providing funding sooner than for many Section 106 agreements)

Limitations of CIL

• CIL will not provide sufficient funding to meet the costs of the Borough’s infrastructure requirements.
• CIL can only be spent on non-site specific infrastructure projects
• CIL Infrastructure projects cannot also receive contributions from Section 106
• Where on site infrastructure is required, only Section 106 can be used to ensure this is delivered