Planning obligations protocol

Introduction and context

1.1 This document is intended to provide best practice guidance on managing Section 106 Planning Obligations related to development taking place in the Borough of Tonbridge and Malling. It is intended to amplify adopted local and national requirements whilst looking towards a collaborative approach to the provision of affordable housing, infrastructure projects and public services across the Borough. The Council believes it is essential that the means of securing such obligations takes place in a fair, open, transparent and reasonable manner in order to retain public confidence in the system and to provide greater clarity to all those involved.

1.2 The Council does not operate a Community Infrastructure Level (CIL) charging schedule. It was decided at the meeting of the Community Infrastructure Levy Panel on 19 December 2011 to not move forward with production of such a schedule, although this position is continually kept under review. In determining planning applications for new development, the Council therefore relies on the provisions of the Town and Country Planning Act 1990 to ensure that appropriate and successful mitigation of development takes place in all instances.

1.3 Under Section 106 of the Act any person interested in land in the area of a Local Planning Authority may, by agreement or unilaterally, enter into a planning obligation –

  1. restricting the development or use of land in any specified way;
  2. requiring specified operations or activities to be carried out on the land;
  3. requiring the land to be used in any specific way;
  4. requiring a sum or sums to be paid to the authority on a specified date for an agreed purpose.

1.4 Such agreements are effectively a mechanism designed to ensure a development proposal is acceptable in planning terms where it would not otherwise be acceptable. The statutory tests for such agreements are that the obligations must be:

  • necessary to make the development acceptable in planning terms;
  • directly related to the development; and
  • fairly and reasonably related in scale and kind to the development.

1.5 This is further supported in policy through the National Planning Policy Framework 2019 (NPPF) at paragraph 55.

1.6 Common examples of what may be sought as planning obligations in order to make development acceptable in this Borough are as follows:

  • Affordable housing;
  • Provision of public open space and public realm enhancements;
  • Highways, transport and travel schemes including cycle and public transport improvements, highway infrastructure works, pedestrian links and facilities;
  • Educational facilities;
  • Libraries;
  • Healthcare facilities;
  • Provision of community facilities;
  • Local environmental improvements including enhancement of designated nature conservation areas;
  • Flood defence;
  • Securing an acceptable mix of uses on development sites;
  • Securing affordable business space;
  • Archaeology and conservation schemes;
  • Pollution mitigation;
  • Fire and rescue facilities;
  • Crime and disorder prevention activities;
  • Town centre improvements; and
  • Employment and training.

1.7 However, the above list is not exhaustive and the precise details of what will be sought by way of a planning obligation will be dependent on the scale and nature of the application and will be governed by relevant development plan policies in force in the area and any other material considerations. As such, prospective developers and applicants are advised to read this Protocol in conjunction with all relevant adopted development plan policies and are encouraged to enter into early pre-application discussions with the Council (as set out in more detail at Section 2).

1.8 In addition, the Infrastructure Delivery Plan (the “IDP”) identifies critical infrastructure and for strategic allocations the IDP identifies what, where, when and how critical new infrastructure will be provided. For strategic locations the IDP identifies likely infrastructure requirements and the measures needed to ensure their future delivery. As the process for bringing forward the sites progresses, this information will be updated and may identify other more minor infrastructure that is required.

1.9 The Council will always seek to explain to prospective applicants what mitigation will need to be provided by Section 106 agreement in the event that they seek pre‐ application advice. Requirements in this respect are set out in full within the suite of adopted policies contained within the Council’s adopted development plan, which are available on the Council’s website. All prospective applicants are strongly encouraged to engage with the Council through the pre‐application advice service at the earliest opportunity.