Out-Law News 1 min. read

Planning application reconsidered after council fails to agree planning obligations before introducing CIL


Bracknell Forest Council's planning committee was forced to consider a planning application for the second time after section 106 planning obligations were not agreed before the Council's Community Infrastructure Levy (CIL) charging schedule came into effect. 

Last week the committee decided to delegate power to its head of planning, who will now approve the application upon the completion of revised planning obligations.

The planning application was for a mixed-use redevelopment, submitted by the Nike Group of Companies. The proposal covers 30 hectares of land located on Amen Corner, Berkshire. The proposed scheme includes up to 550 new homes, a 2,500 square metres neighbourhood centre, hotel and ski centre, construction of new roads and junctions, public open space and play areas.

In August 2014, the Council resolved to grant planning permission for the same redevelopment subject to various conditions and the completion of a suitable section 106 agreement. A draft section 106 agreement was drawn up but, according to a report produced for a meeting of the Council's planning committee last month, "due to protracted negotiations with the applicant and other landowners", it was not possible to complete the agreement before the Council's CIL charging schedule came into effect on 6 April 2015.

The introduction of CIL in the borough means that a number of infrastructure obligations that were to be paid for through the section 106 agreement will now be paid for through a CIL charge of £150 per square metre. Consequently these obligations cannot also be sought using a section 106 agreement. These planning contributions include on and off-site transport measures, secondary school and special needs education provisions, library and sports facilities.

A section 106 agreement still needs to be negotiated in relation to other planning obligations; such as the appropriate level of affordable housing, "measures to avoid and mitigate the impact of residential developing upon the Thames Basin health special protection area", waste recycling facilities and contributions towards the local facilities. These facilities include an on-site primary school, on-site open space and a financial contribution towards a multi-functional community hub. The head of planning will now oversee these negotiations.

Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said: "Councils and developers have now found themselves in the unfortunate position of having to renegotiate and redraft section 106 agreements due to the delay in finalising and signing that agreement prior to the issue of a decision notice."

"They need to carefully ensure that the specific contributions excluded by the CIL charging schedule are removed from the section 106 agreement, whilst ensuring the draft still reads correctly," said Holgate. "A key risk in this is the opening up of previously protracted negotiations relating to, for example, affordable housing provisions. This causes further delay and potential uncertainty for a developer in the future, who may have progressed financial negotiations with an onward buyer on the basis of specific terms."

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