When the Government issued its consultation seeking responses on the impact that section 106 negotiations have in the overall planning process the range of questions asked suggested that some form of intervention may follow. With a deadline for the responses falling some 10 days before purdah it's no surprise that the Government rushed out its response to submissions received less than a week after that deadline.
The Government summarised the responses to its various questions which sought views on matters including whether:
- s106 negotiations represent a significant source of delay;
- the legal framework lacks an effective dispute resolution mechanism;
- if introduced, any dispute resolution mechanism should be binding; and
- a solution involving an automatic or deemed agreement after set timescales would be unworkable.
There seemed to be a relative degree of consensus on the matters raised. The Government has stated that it has addressed a number of the issues in its updated planning obligations guidance which:
- Confirms that Section 106 negotiations should be concluded within statutory timescales;
- Promotes the use of standardised clauses to minimise the need to draft agreements from scratch;
- Sets expectations of earlier engagement at the pre-application stage by all parties;
- Promotes greater transparency about what has been raised through Section 106 agreements and what it has been spent on
- Encourages the use of flexible approaches for boosting local authority capacity.
Vacant Building Credit
One area where the revised guidance has provided some additional welcome clarification is in the area of the Vacant Building Credit, (albeit not part of the consultation). The new credit was introduced in November of last year as an incentive for brownfield development on sites containing vacant buildings. However the guidance fell short of actually making clear how the credit is to be calculated. Read our previous briefing here . The revised guidance now expands on how the calculation is to be made and provides the following useful example:
“where a building with a gross floorspace of 8,000 square metre building is demolished as part of a proposed development with a gross floorspace of 10,000 square metres, any affordable housing contribution should be a fifth of what would normally be sought”
That is because the calculation is based on the additional floorspace to be delivered in the new development beyond the existing floorspace that will be replaced or brought back in to use. In the example the additional floorspace represents 20% of the total new development.
In conclusion, nothing significant has followed from the consultation as the updated guidance is supposed to be just that and, save in respect of some welcome clarification concerning the vacant building credit calculation, it does not set out anything new. Whilst the Government responded to state that the outcomes of the consultation "indicate that the Government should consider a further basis for strengthening the legislative framework for resolving delays" there is no current proposal to do so.
Time will tell where the section 106 issue sits within the new Government. If we are faced with another coalition it's probably not something that will sit high in the list of priorities.