Policy DM33 Planning Obligations
General principles
Delivery of essential infrastructure on or adjoining a site which:
a) is only necessary as a direct consequence of the development proposed; and
b) cannot be secured via condition; and
c) is not identified as infrastructure to be delivered through the Community Infrastructure Levy (infrastructure identified on the ‘Regulation 123 list’)
will be secured by a site specific planning obligation.
Planning obligations will be required to secure infrastructure which is necessary to ensure:
a) the delivery of sustainable development (through compliance with the policies of this plan, other development plan documents and relevant neighbourhood plans);
b) the delivery of affordable housing;
c) the delivery of on-site open space and playspace required directly to serve the development;
d) pedestrian and highway safety improvements necessary to secure satisfactory access to the development via a range of modes of transport.
Viability considerations
In cases where it is demonstrated by independent viability assessment that:
a) the impact of CIL contributions, planning obligations and abnormal development costs, either individually or in combination, would result in a proposed development becoming economically unviable; and
b) a viable scheme cannot be achieved by amendments to the proposals which are consistent with the other polices within this plan
specific policy requirements which would clearly and demonstrably compromise scheme viability may be negotiated, and planning obligation requirements covering specific matters may be reduced, by agreement. Negotiation on planning obligation requirements should be in accordance with the council’s approved Planning Obligations Prioritisation Framework (or successor document) or consideration may be given to specific infrastructure which would normally be delivered through a planning obligation being added to the ‘Regulation 123 list’ and delivered instead via CIL.
Supplementary text
33.1 The NPPF, in its section on Planning Conditions and Obligations, sets out the parameters for planning obligations. The purpose of planning obligations is to make acceptable development which would otherwise be unacceptable in planning terms. The Community Infrastructure Levy Regulations 2010 make it unlawful for a planning obligation to be taken into account in determining a planning application if it does not meet the three tests set out in Regulation 122 (and set out in paragraph 204 of the NPPF).
33.2 For many years, planning obligations had been the main delivery mechanism to negotiate and secure improvements to deliver essential planning benefits from development through the planning process. In Norwich, as elsewhere, planning obligations may still be necessary to cover matters which cannot be dealt with directly by conditions on a planning permission or can be covered by a contribution made directly through CIL but are necessary to mitigate the wider impacts of development in the public interest and to ensure compliance with the policies of the local plan.
33.3 Planning obligations are secured by a binding legal agreement made between the developer, the city council and any third parties involved. Developers also have the alternative option to deal with matters normally covered by an agreement by means of a unilateral undertaking to carry out an action, put in place certain arrangements or make a financial contribution for agreed purposes which complies with the three tests.
33.4 The relevant legislation covering planning obligations is currently section 106 of the Town and Country Planning Act 1990 (hence “section 106 agreements”). Where off-site improvements require works to the adopted public highway (including traffic management measures such as traffic regulation orders), an agreement may additionally be sought under section 278 of the Highways Act 1980.
33.5 Following the introduction of the Community Infrastructure Levy across the greater Norwich area, many aspects of infrastructure funding previously dealt with through site specific planning obligations can be addressed directly through CIL, enabling revenue raised from the CIL tariff on developers to be targeted flexibly and appropriately in accordance with community needs and aspirations (see section on CIL below). This means that the scope and use of planning obligations in Norwich required by this plan is much reduced compared with what has been normal in the past. Nevertheless, there will still be cases where individual development proposals give rise to site specific requirements and localised impacts beyond the site boundary which cannot be dealt with by planning condition and, because they cannot be regarded as strategic matters, do not fall within the scope of CIL.
33.6 The council will seek and encourage flexible and innovative funding solutions which make use of both site specific planning obligations/contributions, where these are agreed to be necessary, alongside appropriate and targeted deployment of CIL revenue to ensure the community benefits of individual developments can be maximised and the impact on development viability minimised. Developers will not be required to enter into planning obligations seeking additional financial contributions for matters which are already covered wholly by the Community Infrastructure Levy.
33.7 The city council’s published ‘Regulation 123 list’ specifies the infrastructure items and projects which it intends to fund through CIL receipts. It also itemises those matters which remain appropriate to cover by means of a planning obligation, for the avoidance of doubt.
33.8 This includes, for example, providing and agreeing management arrangements for affordable housing within private sector housing schemes, longer term maintenance of local open space and playspace, financial contributions necessary to offset the direct impacts of new development from traffic generation (including travel planning and sustainable transport initiatives), and works in the public realm in the immediate vicinity of the site. Developers are advised to consult the most recent list, attached to the CIL charging schedule for the time being in force, for more detail on the scope of planning obligation agreements within Norwich. Further advice on the application and scope of planning obligations relating to transportation matters is contained in appendix 3 of this plan.
33.9 The NPPF acknowledges the value of planning obligations in the planning system but stresses that they should be proportionate and reasonable. It sets out that the combined impact of obligations and other policy requirements should not be such that the ability to develop sites viably is threatened. Accordingly in the interests of facilitating and delivering sustainable development, policy DM33 recognises that the requirements for planning obligations may be relaxed in circumstances where viability of development would be clearly compromised. This would include cases where a scheme could be rendered unviable by, for example:
- achieving a required scheme density under policy DM2;
- achieving a required minimum size of units;
- achieving required parking provision under policy DM31;
- meeting abnormal engineering construction costs associated with mitigating subsidence risk or ground contamination under policy DM11.
33.10 Prior to the introduction of CIL, the city council had introduced a formal procedural framework for the independent assessment of scheme viability in relation to planning obligations, involving ‘open book’ viability assessments and a mechanism for prioritising different obligations within development schemes. With the introduction of a non-negotiable, viability tested charge through CIL, this framework will no longer apply, since it can be expected that most if not all site specific planning obligations deemed necessary will relate to matters which are essential to make the development acceptable and hence the scheme could not be approved without them. The main matter which may be open to negotiation routinely in planning obligations is likely to be the degree to which a scheme can deliver affordable housing in accordance with JCS policy 4.
33.11 Because the legislative context for planning obligations is changing rapidly, further practice guidance in support of this policy may become necessary once the CIL charging system becomes fully established including more detailed advice on viability considerations, clarification as to what extent planning obligation requirements can be relaxed and practice examples of off-site improvements funded through a combination of planning obligations and CIL.
References
- NPPF, CLG, 2012: Ensuring viability and deliverability: Planning Conditions and Obligations.
- National Planning Practice Guidance: CLG 2014; Planning obligations; Viability.
- CS policy 20: Implementation.
- Community Infrastructure Levy Regulations 2010.
- Planning Obligations Prioritisation Framework, Norwich City Council, May 2009 (revised February 2011).
