About planning obligations

What are planning obligations?

Planning obligations (also known as section 106 agreements) are legal agreements between a developer and the local planning authority (the council), and any others that have an interest in the land. Developers can also enter into a voluntary legal agreement to carry out works and these are known as a unilateral undertaking.

The purpose of planning obligations is to ensure that any new development does not put a strain on existing services and facilities such as roads, schools, open space or other community facilities and/or services. They are used to reduce the impacts of the development.

They are usually requested in the context of a planning application and are used when planning conditions are not suitable or could not deliver the particular requirement.

Planning obligations can require the developer to do something, or can restrict what can happen on the land following the granting of planning permission.

They are intended to make a development acceptable which would otherwise be unacceptable in planning terms. The obligation should make the proposed development comply with local, regional and national planning policies.

What can planning obligations do?

In practice, planning obligations can be used for a wide range of purposes, but there is a main principle that planning permission cannot be "bought" or "sold". They also cannot be used as a means to secure a share of the developer's profit for the community. Government policy gives a clear set of rules which planning obligations must meet.

Therefore, a planning obligation should represent a benefit for the land and/or the locality. Developers are not asked to solve existing problems, although they may be asked to contribute towards resolving an existing problem if the proposed development would make things worse.

How do we take planning obligations into account?

The Herefordshire Core Strategy 2011 - 2031 sets out the role of contributions in providing resources to achieve the objectives of the Local Plan and to meet, as far as possible, the infrastructure costs arising from development. This is set out in Policy ID1 of the Herefordshire Core Strategy.

We have also published a Supplementary Planning Document on planning obligations that was adopted in April 2008. This document provides a system for developers to pre-determine the likely levels of contributions towards the following:

  • Accessibility, transport and movement
  • Biodiversity
  • Community services
  • Children and young people
  • Flood risk management, water services and pollution control
  • Heritage and archaeology
  • Landscape
  • Open space, sports and recreation facilities
  • Town centres, community safety and public realm
  • Waste reduction and recycling

Planning officers can only ask for a contribution where it meets the following statutory legal tests:

  • Necessary to make the development acceptable in planning terms
  • Directly related to the development
  • Fairly and reasonably related in scale and kind to the development

If an obligation does not meet all of these tests it cannot in law be taken into account in granting planning permission.

If a developer offers any unrelated contribution, planning officers will disregard this when determining the application. For example, it may not be proper for a local authority to seek contributions towards the development of a swimming pool arising from an application for a supermarket development. However, it would be proper to expect a supermarket developer to contribute towards highway improvements (if appropriate).

How planning obligations are agreed and how to get involved

The National Planning Policy Framework (NPPF) encourages developers to discuss their proposals with the council before submitting planning applications. These discussions will include whether there is any need for planning obligations, and the likely requirements of them.

As the local authority, one of our key roles in this process is to identify and prioritise 'needs' within the county and to consider these alongside present and proposed developer contributions. For example, there might be a lack of play equipment in a residential area, no community hall where one is needed, very limited amount of affordable housing or the need for new road or pavement infrastructure.

While identifying 'need' and discharging the spend within schemes remains the responsibility of Herefordshire Council, in practice, it is not unreasonable for communities to identify those areas where there are weaknesses in social and physical infrastructure to which contributions could be sought from new development. For example, affordable housing, open space and local environmental improvements. This can be through responding to consultation responses on planning applications.

As part of this process, we maintain a community ideas database. This contains 'needs' or 'wishes' that have been formally identified by councillors, parish councils, residents' associations and other interested groups.