Agenda Item No
The Vale of Glamorgan Council
Cabinet Meeting: 26 January, 2015
Report of the Cabinet Member for Regeneration, Innovation, Planning and Transportation
Section 106 Legal Agreements - Protocol for Consultation on Implementation of Spend
Purpose of the Report
1. To seek Cabinet's endorsement of an updated protocol for Member Consultation on the use of financial contributions received from section 106 obligations.
1. That, subject to consultation with Planning Committee and Scrutiny Committee (E&E), Cabinet approve the updated protocol for Member Consultation on the use of financial contributions received from section 106 obligations attached at Appendix A.
2. That Cabinet refers the report to Planning Committee and Scrutiny Committee (E&E) for consideration.
3. That a further report outlining the differences between the current Section 106 system and the impending Community Infrastructure Levy (CIL) system, including an update on the Council's progress towards adopting CIL, be reported to Cabinet and referred to Planning Committee, Scrutiny Committee (E&E) and Community Liaison Committee in due course.
Reasons for the Recommendations
1. To ensure the effective future implementation of s106 obligations, whilst engaging relevant Members in the process.
2. To seek the views of Planning Committee and Scrutiny Committee (E&E) on the updated protocol.
3. To inform Cabinet, Planning Committee, Scrutiny Committee (E&E) and Community Liaison Committee about the Section 106 and CIL systems and progress to date.
2. Members will be aware that the Council currently has the power to enter into legal agreements with developers under Section 106 of the Town and Country Planning Act 1990, to seek contributions from developers to mitigate negative development impacts and facilitate development which might otherwise not occur. The Council's approved Planning Obligations Supplementary Planning Guidance (SPG) sets out the Council's policies for seeking section 106 obligations including financial contributions. This often results in financial payments being made to the Council to provide facilities or infrastructure in the vicinity of new developments such as education facilities, sustainable transport or community facilities.
3. In February 2008 Cabinet and Planning Committee endorsed a protocol for Member Consultation on Section106 spend following a review by the Ward Member Consultation Task and Finish Group of the Scrutiny Committee (Corporate Resources). This was reviewed by Cabinet in 2012 following concerns that financial contributions were not being spent quickly enough once received from developers.
4. In summary, the 2012 amended protocol sets out that when financial contributions are received, the relevant ward and Cabinet members and officers from the relevant service areas are notified at the same time and options for spend are considered and proposed by the relevant service area before further consultation is undertaken with Ward and Cabinet Members and a scheme for implementation agreed. Following this consultation the Director of Development Services makes the final decision. In the event that the local Member is aggrieved with this decision, the decision can be called in to Planning Committee to determine. Since the introduction of this protocol, this had only occurred on one occasion, in respect of an 'Education Facilities' contribution from the development of the Former Lower School site, Cowbridge.
Relevant Issues and Options
5. Following the above case, the process has been reviewed and an amended protocol has been drafted, to reflect the fact that decisions on capital projects funded by S106 contributions is a matter for the Executive and not Planning Committee.
6. The amended protocol is attached at Appendix A. It recommends that if a local or Cabinet Member is aggrieved by the decision of the Director of Development Services, they can request that it be referred to Cabinet (rather than Planning Committee) for the final decision. This is consistent with other financial decisions made by the Council which are the responsibility of the Council's Cabinet. Such an approach more accurately reflects the fact that the decisions on capital schemes, albeit funded by S106 contributions is a matter for Cabinet and not a matter for Planning Committee.
7. The amended protocol also recommends that the initial Ward Member consultation should include a proposal for spend of the contribution to provide clarity and direction to the process.
8. At their meeting on 14th November 2014, the Community Liaison Committee considered the Annual Section 106 Review 2013-14 Report. They recommended: (1) T H A T Cabinet be requested to consider the feasibility of including consultation with Town and Community Councils in the Section 106 process and report back to the Committee and (2) That the report, referred to in 1 above, also includes details of the differences between Section 106 and the proposed Community Infrastructure Levy.
9. At their meeting on 15th December 2014 Cabinet considered this request and resolved as follows:
(1) THAT the comments made about consultation with Town and Community Council's be noted, however, it should be for the respective Vale Councillor for the area to liaise with their Community Council in line with the protocol attached as an Appendix A to the report.
(2) THAT a further report be presented to Cabinet in due course to consider all aspects of the Section 106 negotiations.
(3) THAT a further report be presented to the Community Liaison Committee once it had been considered by the Cabinet.
10. In this regard, in inputting into the development process, Town and Community Councils can comment on proposals and potential section 106 agreements at the application stage, particularly as Officers and Members consider the need for mitigation at this stage. In addition, as Local Ward Members are consulted on proposals for projects once money is received, this provides another mechanism for Town and Community Councils to comment on proposals. This approach is deemed to be an appropriate level of engagement given the need to balance engagement against the timely implementation of Capital schemes to mitigate new development. A letter outlining this process was sent to all Town and Community Council's in 2011 (see Appendix B to this report).
Resource Implications (Financial and Employment)
11. The planning obligations sought through Section 106 legal agreements are an important mechanism to mitigate against the impacts of new developments and pay for new and improved facilities for residents of the Vale of Glamorgan.
12. The recommendation that Cabinet rather than Planning Committee make the final decision in the event that agreement cannot be reached is consistent with other financial decisions which are made by the Council's Cabinet.
Sustainability and Climate Change Implications
13. Planning obligations can be used to mitigate the impacts of new developments having regard to sustainability principles.
14. There are no implications for sustainability and climate change arising from this report.
Legal Implications (to Include Human Rights Implications)
15. The planning obligations system is covered by Section 106 of the Town and Country Planning Act 1990 (as amended) and The Community Infrastructure Levy Regulations 2010 (as amended).
16. It is essential that s106 spend is carried out in accordance with the legal requirements set out in the relevant Section 106 agreement and these are set out to all parties when consultation is undertaken by the s106 officer.
Crime and Disorder Implications
17. None arising out of this report, although planning obligations can be related to crime and disorder matters given that such matters are material considerations.
Equal Opportunities Implications (to include Welsh Language issues)
18. None arising out of this report.
19. The contributions paid by Developers under the planning obligations system have a wide impact on many of the Council’s functions including education, community facilities, highways and public transport.
Policy Framework and Budget
20. This is a matter for Executive decision.
Consultation (including Ward Member Consultation)
21. No Ward Member consultation has been undertaken as the report has implications for the Vale as a whole rather than specific wards.
Relevant Scrutiny Committee
22. Economy and Environment.
Town and Country Planning Act 1990
The Community Infrastructure Levy Regulations 2010
Victoria Robinson, Principal Planner (Development Control) - Tel: 01446 704662
Director of Finance, I.C.T. and Property
Operational Manager – Legal Services
Director of Learning and Skills
Rob Thomas - Director of Development Services