Advice to Baker Associates

Enquiry

• From: Baker Associates
• Date advice given: 15 March 2011
• Enquiry type: Email

Would it be possible please to give me some information on how negotiations should be conducted on community benefits regarding a major infrastructure project? How does the S106 regime fit with a DCO application and what are the IPC’s expectations as to how negotiations should be conducted?

Advice given

I can confirm that Section 174 of the Planning Act 2008 (PA 2008) amends Section 106 of the Town and Country Planning Act 1990 (TCPA 1990) to allow for development consent obligations to be entered into in connection with an application for an order granting development consent. Effectively, Section174 PA 2008 transcribes Section 106 TCPA 1990.

Whilst the obligation would not form part of the draft Development Consent Order, they are important as they will affect the overall impact of the proposed development. It is advised that a promoter should agree the heads of terms of any development consent obligation with the local authority before an application is submitted and that ideally a fully drafted agreement (or unilateral undertaking) which has been consulted upon and referenced in the consultation report should be included with the application. In this respect I would advise considering the advice given in IPC Guidance Note 2 (para 25-26) - http://infrastructure.independent.gov.uk/wp-content/uploads/2010/04/IPC-app-docs-guidance-note-2.pdf. In terms of the mechanics of how negotiations are conducted I would advise that it is for the local authority and scheme promoter to enter into discussions at the earliest opportunity prior to the submission of an application by embracing the principles of front loading.