WHAT IS A SECTION 106 Agreement and how does it work?
Sorry! You may need of cup of tea and a lie down after reading this!
We preface this piece with an explanation for our followers, like Awfold’s Dear Denise, who has trawled tirelessly looking for answers – often in the dead of night after she has returned from an exhausting journey to London … to WORK!
Dear Denise is one of those dreaded commuters that no one in the Parishes likes – because they clog up the local roads and create rat-runs down picturesque country lanes – and yet they all do it! A classic case of that, oh so parochial, Don’t do what I do, do what I say! But, at least Denise cares about the borough and wants and deserves – ANSWERS!
So here goes…
We, here at the WW, are not planners, or even experts in our field – as some of our more critical followers do like to keep reminding us – but at least we have a go. OK, we’ll say it before you do: We’re always having a go at someone!
However, we’ve excelled this time and brought in an expert – we found one loitering on Haslemere High Street and dragged them in and conducted what’s known locally as the Dunsfold Inquisition – similar to the Spanish – but instead of torture we plied our Legal Eagle with coffee and cakes – cost us a bloody fortune.
So… down to business! This is serious stuff because it’s been keeping Dear Denise and her fellow commuters awake at night! The poor souls have enough to contend with just getting to Waterloo to earn an honest crust!
Dear Denise & Doubting Thomas
First of all let’s give this some context, for those who don’t know how a Section 106 (s106) works, to ensure everybody understands what it’s for and what it can, and cannot do.
Begin by going to the government’s planning portal website and you will find this page https://www.gov.uk/guidance/planning-obligations
Use of planning obligations and process for changing obligations.
Your Waverley is still using this type of agreement with developers because it doesn’t yet have Community Infrastructure Levy (otherwise known as CIL). Rather worse than that, as you will see, s106 relates to the development plan and, in theory, Waverley’s development plan is the 2002 Local Plan! But Waverley is where Waverley is, so, let’s cut to the chase, and address the big question: What does all this mean for local residents?
One of the critical points our Legal Eagle (LE) highlighted is that a planning obligation must be “directly related to the development”.
Some of Dunsfold Park’s (DP) contributions, particularly those going to Surrey County Council, are calculated per head and our LE thinks this includes education, libraries (yes, you might well ask, What libraries?) sport & leisure. DP may be different because it’s providing on-site sports facilities as part of its new development. Rumour has it, it’s also stumping up the monies to help pay for a new leisure centre in Cranleigh. So that’s a win-win for Cranleigh residents!
Some are not fixed per capita – highways being a good example. These contributions are a matter of negotiation in each case. So the anticipated impact of the development on the surrounding area has to be agreed between Waverley BC, Surrey CC and the applicant (DP) and evidenced. So that is why it is being asked for some contributions for some junctions but not, for example, to sort out the existing mess in Cranleigh. In other words, (DP) has to mitigate the effects of its development as and when built. It doesn’t have to sort out the existing mess because its nothing to do with them. We know some like to blame (DP) for everything and anything that goes wrong in Waverley but, it isn’t!
A s106, particularly on a large site like DP, doesn’t attribute a monetary value to all the benefits a developer will be providing but these very significant benefits still represent a massive and total cost to the developer.
Which probably explains why Dear Denise, despite all her midnight trawling can only find £18 million. If you look at your own schedule, Denise, you will see there are a whole host of developer funded contributions/obligations which don’t have a figure against them. That’s because the Dunsfold Developer has to provide those facilities themselves within the new development and at its cost. Just because they are part of the development, doesn’t mean they come at no cost to the developer!
A Community Land Trust, a Community Centre and contributions to canal works will all come at significant cost. That’s why, Dear Denise, we are told, you can only find £18 million. Also, unless our LE has missed something, there is no mention of the actual Bus contribution but there is one; much was made of it during the Public Inquiry because it’s going to be underwritten by a lien on rental income from the Commercial Park to ensure the Bus contribution is guaranteed. No wriggle room there then!
Phasing and details
This is what’s known, in the trade, as a hybrid application (ie, there are elements of both detailed and outline planning consent) because a developer can’t apply for a demolition application as an outline application. Otherwise for such a large application it would have all been in outline.
Why? Because – no matter how much you hate developers – it’s unreasonable to expect them to spend shed loads of dosh working out the fine details of a planning permission – or, for that matter, to expect a local authority to commit all the officer time and resources required when neither party knows if the developer is going to get a planning consent at the end of it. So, what’s happening here is all perfectly normal in planning terms. That would be like being asked to pay for a dress/trousers before you took it into the changing room and not getting a refund if they didn’t fit!
There are mechanisms for dealing with the outstanding issues in the conditions and in the reserved matters. Our LE hasn’t seen the detail of DP’s planning conditions or Reserved Matters but, we are told, that’s where a lot of the final detail will be thrashed out. And that’s perfectly normal, particularly for a big development of this size, which will be developed, in phases, over many years; between 10 and 15, probably.
Again, this is perfectly normal and much of the detail, including details of the phasing, will still need to be worked out and that in itself could take a couple of years! What our LE did detect though, is that a lot of attention has already been given to the aspects which are really important to Waverley BC, like the housing mix and speed of delivery/construction.
The other thing the planning system recognises, and pretty well all s106 implicitly recognise – and this application is no exception – is that you can’t expect a developer to pay all the contributions up front. Yeah, we know it’s a bugger but even the wealthiest developers have cash flow issues. They have to spend a lot of money upfront on the site – installing utilities, roads, earth moving, etc, – so they need to make a bit of dosh on the way through to replenish their own coffers through house sales, otherwise who’d be a developer? We know it’s a dirty job and people don’t like them but someone’s got to do it or the next generation will all be living in tents!
As far as the highways contributions go, LE said they seem perfectly fair and reasonable. After all, if the new residents the developer hopes to attract to the village fail to materialise there can be no impact on the highways and no educational requirement for non-existent children!
Also, Dear Denise, you need to remember, as mentioned earlier, that point about contributions being “directly related to the development”, because a developer isn’t supposed to be paying to remedy an existing problem, just to mitigate the effects of his development! Yeah, we know you and Doubting Thomas don’t think that’s fair but you wouldn’t think it fair if you were asked to pay to tarmac your neighbour’s pot-hole riven drive or repair his leaking conservatory roof, now would you? So why should a Developer be asked to fix an existing problem he didn’t create and has no responsibility for?
Our LE doesn’t understand your point, Denise, about the distribution of housing. If you are referring to an ideal world, where housing should be better distributed across the borough, they would agree but, in the real world, distribution is distorted by the protection given to the Green Belt and the AONB here in Waverley. What can you do?
Well, of course, we all know what Charles William Orange Esq and his cohorts want to do; they want to build over our green fields and Green Belt – on land they own! In reality, most reasonable people want to protect our fields and Green Belt and build on brown fields first, if they’re lucky enough to have them!
So, for all our sakes, let’s hope the future’s bright but that it’s not ORANGE!
Our LE, who lives locally – well, they would if we dragged them in off Haslemere High Street – has followed the Dunsfold Park Saga since 2009 and concluded by saying, with the benefit of hindsight, if the Borough (under Mary Orton-Pett, Richard Shut-the-Gates, Robert Knowless and Bypass Byham) had had the vision – to say nothing of the daring! – to accept and support what was proposed at Dunsfold Park in 2009, Waverley BC would have had a new Local Plan by 2013, using the South East Regional Plan housing figures. That being the case, many of those houses would have been built by now, with more coming along; Waverley would also, therefore, have had CIL and there would not now be virtually uncontrolled development across the borough but, especially, in Cranleigh.
So, in a nutshell, Waverley’s in the mess it’s in because it’s dragged its heels, thought it could buck the system and the Cash & Clout Brigade think, based on past experience, that they can buy influence within the Tory Government because they write big cheques to fund Jeremy Hunt’s new en-suite and Anne Milton’s ego. Who knows, maybe they can but if they do, GOD HELP THE REST OF THE BOROUGH – by which we mean Cranleigh, Godalming and here in Farnham. After all, we know how much PoW & the Parishes care about us; their caring, sharing nature was amply demonstrated when one man (that Dick De’Anus) and his dog turned up for the Thakeham Thugs Inquiry, whilst the rest of the Cash & Clout Brigade hi-tailed it to the Burys to demonstrate their disapproval of the Dunsfold Developer!
So, there you have it, Dear Denise and Doubting Thomas, we’ve done our best to answer your questions. If you have any more, might we suggest that maybe you should think about bearding the Dunsfold Developer in his lair? Despite all the rumours – sadly, even our best endeavours have not been able to track down the names of any babies he’s snatched or pet poodles he’s eaten for breakfast. He’d probably welcome you with open arms – or, at the very least, a cup of coffee and a biscuit – and answer any outstanding questions you might have about his s106 contributions.
We’d love to pop along ourselves but then we’d have to adopt a Burqa to protect our identity and a Burqa-clad man on an aerodrome is likely to raise all sorts of security issues in this weird and wonderful world we inhabit.
But, if you do pick up the phone and get an invitation to morning coffee or afternoon tea, do, PLEASE, write in and tell us all about it because we’d love to know – in fact, we’re dying to know – what the Dunsfold Developer’s lair is really like. Someone once told us he had a dartboard with Robert Knowless and Richard Shut-the-Gates’ heads on it and the staff play Pin the Tail on the Donkey with a photo of Kevin De’Anus’s … OK, let’s keep it clean! You get the picture.
Sorry this is rather long- but you did pose an AWfold lot of Quetions:
With love from all at The Waverley Web xxx
P.S. Please keep writing to us – but we can’t promise to persuade the Legal Eagle to guide us through any more questions – because it has taken flight!