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Advice to DECC

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Enquiry

From
DECC
Date advice given
14 March 2011
Enquiry type
Email

Please provide information on how the IPC might consider community benefit/s.106 agreements as part of its consideration of applications for development consent.

Advice given

Applicants can enter into planning obligations with local authorities in connection with applications for development consent for NSIPs. The relevant legislation is174 of the Planning Act 2008, which modifies s106 of the Town and Country Planning Act 1990. There are tests, set out in DCLG guidance, which limit the nature of planning obligations which a local authority may seek from a developer and would determine whether it could place any weight on the matter in its decision making. These tests are now a matter of law in relation to any development to which the Community Infrastructure Levy applies. Our view is that these tests will usually apply in relation to the NSIP regime, and that when making decisions or recommendations regarding applications for development consent the IPC will only place any weight on planning obligations which meet all the tests. The tests are that the planning obligation must be (a) necessary to make the development acceptable in planning terms; (b) directly related to the proposed development; and (c) fairly and reasonably related in scale and kind to the development.

Applicants should aim to consult on proposed s174 obligations and include finalised agreements with their application documents. If this is not possible, it is likely that the Examining Authority may - as it has in the case of the Rookery South application - set a deadline during the examination period for the submission of a completed agreement. The IPC can and does give pre-application advice process issues of this nature, and will encourage constructive dialogue, but cannot mediate or otherwise intervene in negotiations between applicants and local authorities.

There is nothing to prevent developers offering community benefit in ways which do not meet the tests. If they do, the IPC will place no weight on such benefits when reaching their decision or recommendation. Clearly it would not be appropriate for the IPC to involve itself in any way in any pre-application discussions around offers of this nature.