Draft Planning Obligations Supplementary Planning Document

Ended on the 19 January 2023
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6. Implementing this Planning Obligations SPD

A. Monitoring and Enforcement of Obligations

6.1. The Council will monitor all contributions agreed through S106 agreements, both financial and non-monetary to ensure that they are complied with.

6.2. In cases where developers have difficulty making payments at the appropriate times as required by the legal agreement, the Council will work with the developer to find a solution. This may involve the payment of an obligation at a later stage in the development, or payment by installments. However, where it is imperative that the relevant measure is in place prior to a development being occupied, the obligation to fund it will always become payable on commencement.

6.3. In the event of an obligation not being fulfilled as agreed, the Council will write to the developer requesting timescales for completion within 21 days.

6.4. In the absence of a response or if the Council remains dissatisfied with the proposed timescales for completion, the Council will consider instigating enforcement action. The Council has the option of using an injunction, which can stop the development proceeding and/or ensure compliance with the terms of the Agreement. The Council has the power to enter the land and carry out any works that were required and recover the costs (a 21 day notice of intention must be given to do this).

B. Monitoring Fees

6.5. To support the monitoring and administration of s106 obligations, an appropriate monitoring fee will be applied to the relevant S106 agreements. The basis for the monitoring fee will be determined on a case-by-case basis. Monies received via this monitoring fee will be used by the Council to fund resources for monitoring the provisions secured via S106 agreements and other aspects of the planning application. Applicants will be required to pay the Council reasonable legal fees incurred in settling the unilateral undertaking, S106 agreement, or in a deed of variation to a S106 agreement.

6.6. Unilateral undertakings include obligation to pay the Council's costs in monitoring and managing the implementation of the planning obligation.

6.7. Essex County Council charge separate monitoring fees for S106 obligations types that they are responsible for, for example education and highways. Further information is available on www.essex.gov.uk

6.8. In addition, for contributions falling under the monitor and manage mechanism, applicants will be required to pay the Council the cost of monitoring traffic against the TMMP.

6.9. All monitoring fees will be subject to indexation and payable on commencement of the development.

C. Reporting on the Use of Section 106 Obligations and CIL

6.10. For financial contributions, an audit trail between the contribution and expenditure will be provided within the Infrastructure Funding Statements, published annually from 31 December 2020. This will also set out the infrastructure projects or types of infrastructure that the authority intends to fund, either wholly or partly, by CIL or planning obligations.

6.11. The Infrastructure Delivery Plan (IDP), which will be updated periodically will detail where s106 financial contributions have been secured towards individual infrastructure projects.

D. Exempt development

6.12. Development consisting of:

  1. less than 10 dwellings and less than 1,000 square metres of GIA non-residential development (except where it is a result of a larger development being sub-divided into smaller developments consisting of less than 10 dwellings and less than 1,000 square metres of non-residential development); or
  2. a replacement development resulting in less than 10 additional dwellings or 1,000 additional square metres of GIA non-residential floorspace;

shall not be expected to enter into a S106 agreement in accordance with the framework S106 agreement unless national policy or guidance alters to no longer discourage obligations on smaller developments.

E. Payment management

6.13 All agreements will include requirements for interest to be paid on outstanding contributions if payments are made late.

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