Annex 2: Planning Contributions

Planning conditions concern those matters relating to the site itself that are subject to planning control. In some circumstances it may be appropriate to mitigate effects on the wider environment and on the public through other means if the applicant is willing. This may be done by the MPA entering into a legal planning agreement. Such planning obligations were secured under section 106 of the Town and Country Planning Act 1990⁹⁶. These agreements have variously been referred to as 'section 106 agreements', 'section 106 legal agreements', 'planning agreements' or 'planning obligations'. However, they have recently been superseded by planning contributions under section 46 of the Planning and Compulsory Purchase Act 2004. The relevance and application of such agreements to mineral workings are laid out in MPG7¹⁷⁶

A planning obligation/planning contribution can restrict a development and land use but can also be used to enhance the quality of the proposal and surrounding environment. It may include improvement to services that are directly affected by a proposed planning permission. For example a sum may be offered towards a new or upgraded road scheme because of the increase in traffic resulting from a mineral working.

Circular No. 1/97¹⁰⁷ set out policy and advice on the use of planning obligations. It states that as with conditions, planning obligations should only be sought where they are necessary to the granting of planning permission, relevant to planning, and relevant to the development to be permitted. It goes on to set out five tests for the reasonableness of seeking planning obligations. They should be :

• necessary
• relevant to planning
• directly related to the proposed development
• fairly and reasonably related in scale and kind to the proposed development
• reasonable in all other aspects

There is a difference between placing conditions on a planning permission and entering into a planning obligation. Planning conditions should not be repeated in a planning obligation nor should it be used to secure a developer's agreement to follow policies.

A planning obligation/planning contribution is a joint agreement between the two parties. The legal document may be produced by the applicant or the local planning authority legal department. Once produced it may be amended until both parties are satisfied with the document and ready to sign. Due to the process of amendments it is often advised that if a legal agreement is required the procedure be started as soon as possible.

Section 12 of the Planning and Compensation Act 1991⁹⁷ replaced section 106 of the 1990 Act⁹⁶ with new sections 106, 106A and 106B. The new section 106 amended the law relating to planning agreements by enabling a developer to enter into a planning obligation, which may be done either by agreement with the authority, or by the developer giving a unilateral undertaking. Where given, these normally arise in the context of an appeal. In this case, the applicant makes a legally binding declaration to carry out works or provide funds as part of submissions made to justify an application. This is sometimes the case where negotiations have failed to produce agreement.

Section 106 arrangements usually require the monies to be used for the stated purposes within a given time, failing which the sum must be repaid. Planning gain is always a benefit within the context of the application from which it arises, and its use must be in an auditable and accountable manner, for the specific purposes set out in the section 106 agreement.

Planning obligations can be used in all areas of development, but MPG7¹⁷⁶ makes it clear that special considerations apply to the use of planning obligations and the imposition of conditions in connection with mineral development.

Guidance on planning contributions is currently in preparation. Examples of some situations where planning obligations/planning contributions may be appropriate are given in Table 6, but they must relate fairly and reasonably in scale and kind to the proposed development..