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Policy and Legislative Context

2.  Policy and Legislative Context

National Context

2.1.     Nationally, the policies relating to developer contributions and sustainable development are set out in the National Planning Policy Framework 2021 (NPPF) (particularly paragraphs 55-58) and guidance is contained in the Planning Practice Guidance (PPG).

Mechanisms for securing Developer Contributions

2.2.     There are currently three main mechanisms used to secure infrastructure funding and provision: the Community Infrastructure Levy (CIL), s106 of the Planning Act and s278 of the Highways Act. Planning conditions may also be used to secure non-financial mitigation, to define timing or apply standards.

Planning Obligations (Section 106)

2.3.     Planning obligations secured through s106 of the Town and Country Planning Act 1990 (as amended) are entered into as legal agreements between local planning authorities, landowners, developers and any others with an interest in the land. In certain circumstances an applicant/developer may submit a unilateral undertaking in respect of a planning obligation.  Planning obligations are used to secure the delivery of measures necessary to make a development acceptable.

2.4.     Planning obligations impose financial and/or non-financial obligations on those with an interest in the land and will become binding on that parcel of land.

2.5.     The NPPF (paragraph 55) states that planning obligations should only be used where it is not possible to address unacceptable impacts of development through a planning condition. 

2.6.     The process for negotiating and securing planning obligations is set within the framework of national legislation and guidance, and local policy and guidance, and other material considerations relevant in each particular case. Planning obligations must only be sought where they comply with all of the following tests (as set out in the CIL Regulations 2010 (as amended) Regulation 122(2)):

a)     necessary to make the development acceptable in planning terms;

b)     directly related to the development; and

c)     fairly and reasonably related in scale and kind to the development.

2.7.     Given the above, it is therefore also important to be clear and open about what the Council cannot do:

  • The Council cannot expect developers to fund solutions for existing infrastructure problems, these are the responsibility of the infrastructure provider
  • The Council cannot seek provision of benefits and infrastructure over and above that necessary to make the impacts of planned development 'acceptable' and the development sustainable on balance

2.8.     What impact is 'acceptable' is a planning judgment and it does not necessarily mean the outcome would be 'better' or 'no worse' than existing conditions. For example, Government policy says that 'development should only be prevented or refused on transport grounds where the residual cumulative impacts of development are severe'.

Highway Improvements - Section 278 Agreements

2.9.     Where development requires work to be carried out on the existing adopted highway, an Agreement will need to be completed between the developer and either the Secretary of State for Transport (for the strategic road network for which Highways England is responsible), or Hampshire County Council as the Local Highway Authority (for the local road network), under s278 of the Highways Act 1980.

Community Infrastructure Levy (CIL)

2.10.  As of 1 April 2015, the Community Infrastructure Levy (CIL) has been chargeable on all new residential development at a base rate of £80 per sqm, adjusted annually in line with the all-in Tender Price Index. In 2021, the index linked charge is calculated at around £102.46 per sqm. CIL liability on a development is non-negotiable and the liability becomes due on commencement of development. Home extensions of less than 100sqm gross internal floor area (GIA) are exempted from CIL. Some forms of development such as home extensions of 100sqm GIA or more, affordable housing and self-build housing can apply for an exemption from CIL. The timing of CIL payments can be also be varied in accordance with the Council's published Instalments Policy. Full details on CIL can be found on the CIL webpage of the Council's website.

Provision in kind

2.11.  In certain circumstances CIL, s106 or s278 contributions may be made by developers 'in kind' where the developer builds or provides directly the matters necessary to fulfil the contribution.

2.12.  The Council's CIL Payment in Kind Policy sets out the conditions under which the Council will consider land and infrastructure payments in lieu of part, or all, of a CIL liable development.

The Interaction between s106 and s278 Planning Obligations & CIL

2.13.  Although CIL is expected to make a significant contribution to the infrastructure requirements of the Plan area, other sources of public and private funding will continue to bear the main burden of infrastructure funding.

2.14.  S106 Agreements and s278 Agreements will be used to address the site-specific impacts of a development whereas CIL will contribute towards the costs of infrastructure connected with the wider growth of the Plan Area. All eligible development must contribute to any site-specific requirements secured through s106 Agreements and additionally pay CIL. The provision of affordable housing lies outside of the remit of CIL and will continue to be secured through s106 Agreements.

2.15.  CIL is therefore an appropriate delivery mechanism for infrastructure to support the sustainable development and growth of an area, rather than to make individual planning applications acceptable in planning terms.

Planning Conditions

2.16.  Sections 70 and 72 of the Town and Country Planning Act 1990 allow local planning authorities to attach conditions to the granting of planning permission. They cannot be used to secure financial contributions but can be used to ensure that certain elements related to the development are provided and therefore enable development proposals to proceed where it would otherwise have been necessary to refuse planning permission.

2.17.  Paragraph 56 of the NPPF makes clear that Planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects. Additionally, pre-commencement conditions cannot be used without the written agreement of the applicant to the terms of the condition (except in the case of a condition imposed on the grant of outline planning permission within the meaning of Section 92 of the 1990 Act or in the circumstances set out in the Town and Country Planning (Pre-commencement Conditions) Regulations 2018).

Local Plan Policies

2.18.  The adopted Local Plan contains a number of policies which provide the justification for the various types of planning obligations that will be required of development proposals at planning application stage. These include:

2.19.  The site allocation policies in both the Local Plan 2016-2036 Part 1: Planning Strategy and the Local Plan Part 2: Sites and Development Management (2014) set out site-specific infrastructure requirements required to support the development of those sites.

Infrastructure Delivery Plan (IDP)

2.20.  In consultation with infrastructure providers the Council has produced an Infrastructure Delivery Plan (2018). The Infrastructure Delivery Plan identifies what infrastructure is required to support the developments in the Local Plan 2016-2036 Part 1: Planning Strategy.



Unilateral Undertaking

A Unilateral Undertaking is a simplified version of a Planning Agreement and is only entered into by the landowner and any other party with a legal interest in the development site. They can assist in ensuring that planning permissions are granted speedily. A unilateral undertaking will only be appropriate in certain circumstances. A unilateral undertaking cannot bind the local planning authority because they are not party to it.

Planning Conditions

An example of this would be the attachment of a planning condition requiring water efficiency higher optional standards in the new dwellings built prior to occupation of the dwellings for reason of water scarcity in the subregion, and to help reduce impacts from treated sewage on the environment

Pre-commencement conditions

See paragraph 036 of the Planning Practice Guidance (PPG):

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