HertfordshireCounty Council Scrutiny of Section 106 Agreements–
Agenda Item 4 a) iii)
Comments for submission to Topic Group on 10th November 2010
by Welwyn Hatfield Borough Council (WHBC)
The County Council is commended for its efforts, over the last two years in particular, to provide a more closely-evidenced basis for the section 106 contributions sought towards County Council services. Significant improvements have also been made in monitoring the s106 funds collected by the County Council, and in feeding this information back to districts through the ‘traffic light’ reports and the annual s106 selection meetings (see Appendix D to Topic Group Background Report).
There are a few observations which WHBC would like to make, in the interests of improving the s106 process still further:
1. Justification of contributions
As remarked above, the evidence base available from County Council
service providers to justify requests for s106 financial contributions seems
to have improved in the last one to two years. The Hertfordshire Property
planning obligations team in particular seem to be having greater
success in working with education and associated services to identify
demands arising from new development and linking these to planned
schemes in the locality of the development site. It is accepted that this
work operates against a background where service providers find it
difficult to plan too far ahead, though use of any published forward plans
for education, childcare, youth services, libraries and adult care services
should be encouraged.
This work needs to continue, and is coming under close scrutiny through
the planning appeals process. This scrutiny may become closer as a result
of the legal changes to the s106 regime introduced in April 2010 whereby
the tests of necessity and direct relationship to the development are now
statutory.
This closer linkage to particular development schemes is also important to
the transportation requirements for s106 agreements. Where particular
highway works are required adjacent to a development site or in its
immediate vicinity, these are fairly readily achieved through s278 of the
Highways Act or a developer’s contribution calculated for payment
through section 106. Problems have arisen, however, with requests for
payment of contributions towards ‘sustainable transport’, where cycling
and walking schemes, or potential improvements to bus services and
infrastructure, in the vicinity of a development site, cannot be identified
at the time of the planning application.
We would take the view that there could usefully be more of a focus on
schemes identified in the LTP, UTPs (and maybe even Parish Plans where
these are agreed and adopted into a Borough-wide planning framework)
as a sound basis for achieving section 106 contributions towards
transportation schemes.
At present the adopted local policy basis in Welwyn Hatfield for
securing s106 contributions comprises the following policies from the
Welwyn Hatfield District Plan 2005; Policy IM2 (general policy on planning
obligations), Policy M4 (transportation contributions), Policies CLT8
(education), CLT10 (nurseries and childcare) and CLT11 (libraries).
The Broadwater Road West SPD 2008 also provides policy on s106
requirements specific to that development site.
Work will no doubt continue at the County Council to make clear the
‘audit trails’ between needs and demands for County Council services
arising from new development, the s106 contributions collected, and
particular planned schemes for improved infrastructure and services.
In the Community Infrastructure Levy (CIL) regime introduced in April
2010 there is clearly the potential for financial contributions to be made
to a wider pot, where the direct link to particular development sites is
broken. This would provide greater flexibility for service providers to
allocate resources where needed for priority schemes. At present,
however, the extent to which CIL charging schedules will ever be
introduced in Hertfordshire is not clear. This is partly due to the relatively
slow progress towards adoption of LDF core strategies by the districts and,
more importantly, to the change of central government, which may
result in CIL being effectively replaced by a ‘local tariff’ with its own rules,
as yet unknown.
At present, it seems likely that WHBC will need to follow the route taken by
several other Hertfordshire districts in preparing a planning obligations
Supplementary Planning Document (SPD), though this is subject to taking
account of any relevant announcements by central government before
the end of 2010.
2. s106 drafting
There are still on some occasions delays at the County Council end in the
drafting of s106 obligations or in amending draft obligations submitted by
a developer. As the Background Report points out, districts are under
considerable time pressure to determine applications within statutory
periods. The abolition of national performance indicators by the present
government will not remove this pressure, as statutory periods for
determination will remain, and districts may keep local performance
indicators against which to judge their planning functions.
One critical area relates to unilateral undertakings submitted by
developers to accompany planning applications. These are often used
as a speedier route than agreements where the payment of agreed
financial contributions is involved. Normal practice currently is to give the
County Council sight of the draft unilateral undertaking to ensure that
HCC’s interests are adequately protected. This will continue, but
amendments, where necessary, need to be suggested promptly by the
County Council to enable the district to discuss with the developer and
still determine the application within statutory timescales. The
developer is not bound to amend the unilateral, but the local authorities
need to be clear in any particular case as to whether a failure to do so
will lead to a recommendation of refusal.
It is not entirely clear whether drafting of s106s in the CountySecretary’s
department is still proceeding in accordance with agreed templates
(as intended when the HCC toolkit was launched). A review of the
form and use of templates may be appropriate now that the toolkit
has been in operation for nearly three years.
3. s106 monitoring systems
The good progress towards a consistent s106 monitoring system at the
County Council is noted, in particular the decision to migrate data held in
the Hertfordshire Property system to the PROMS database used within HCC
Environment.
WHBC will be interested to learn more about the way in which the
handling of HCC’s s106 contributions will be reported back to districts
from the new merged system, and what form of access to the systemwill
be allowed for WHBC officers and members. Such access would be
important in increasing transparency and accountability in the s106
process and in helping districts to inform developers regarding the
spending of their s106 contributions, since districts as local planning
authorities are often the first port of call for such requests.
WHBC is also keen to understand whether the newly purchased ‘Smart
Herts’ (CDP) system will be utilised in section 106 monitoring at the County
Council, since there has been considerable discussion of this at officer
level prior to introduction of the system. At present it is unlikely that WHBC
will make use of the fairly basic s106 monitoring element of Smart Herts
unless the County Council is also committed to doing so.
4. Collection of s106 contributions
At present WHBC operates a system whereby financial contributions
towards County Council services are paid directly to the County
Council by the developer, or if submitted to WHBC are immediately passed
to the relevant contact at the County Council. It is also expected with
s106s in the WHBC area that HCC will undertake its own monitoring of
trigger dates and communicate with developers or their agents directly
to require payment. There is no immediate intention to change this
process, or to set aside a dedicated s106 monitoring resource at WHBC
which would also be able to monitor the collection of HCC contributions.
Having said this, liaison between application case officers at WHBC and
their counterparts in HCC Environment or Hertfordshire Property is clearly
important, and WHBC will assist in obtaining compliance with agreed
s106 obligations in favour of HCC wherever possible. There will also be
continued technical liaison, for example in establishing when start dates
or other trigger levels have been reached, and the more local and
detailed site knowledge of WHBC case officers can be helpful in this respect.
5. Spending of s106 contributions
The recent administrative and process changes at the County Council
are improving targeting and accountability in the spending of received
contributions. This should eliminate most of the earlier problems of
contributions being ‘timed out’ under repayment clauses contained
within individual s106s, which should never be allowed to happen
accidentally.
From personal experience of attending the annual selection meetings
for s106 spending it does appear that historic s106 contributions which
have not been strictly tied to particular schemes are occasionally
sought after as ‘fair game’ for pet projects or political priority projects.
Whilst understandable in the present financial climate, this approach
needs to be treated with caution, given the statutory nature of the
tests for s106 necessity and relevance and the reasonable requirement
from developers to require an audit trail demonstrating how their money
has been spent.
WHBC as local planning authority may also need to consider its input to
Highways Joint Members’ Panel in commenting on the annual selection
of schemes for s106 funding, as at present there is no formal planning or
transportation officer support for WHBC members on this panel.
Should the Topic Group require any further information, or have any questions
on this submission, we would be happy to respond in writing following the meeting on 10th November.
Simon Chivers
Principal Planner (Special Projects)
Welwyn Hatfield Borough Council 8th November 2010
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