Section 106 Agreements

In order for planning permission to be issued for major developments (defined as 10 dwellings or more, 1,000 square metres floorspace, sites over 1Ha etc) usually a section 106 agreement must be completed.

For Developments under 10 contributions towards Community Facilities and Public Open Space/Sport and Recreation are required

S106 agreements, also known as "Planning Obligations", are legal agreements between a council and a developer or other parties, or can be offered unilaterally by a developer, that ensure extra works related to a development are undertaken.

View Developer Contributions

S106 agreements will be considered when a development will have negative impacts on the local area that can't be mitigated by means of conditions attached to the planning permission.

For example, a new residential development can place additional pressure on the social, physical and economic infrastructure which already exists in the surrounding area.

Planning Obligations aim to balance this extra pressure with improvements to the surrounding area to ensure that a development makes a positive contribution to the local area and community.

All applications are assessed on a case by case basis and not all developments will require obligations.

Type of obligations

The government gives guidance on S106 agreements, which states the obligations must be:

relevant to planning
necessary to make the proposed development acceptable in planning terms
directly related to the proposed development
fairly and reasonably related in scale and kind to the proposed development
reasonable in all other respects

Read more about planning obligations on Gov.uk

Areas which could attract potential obligations include:

affordable housing
primary and secondary education
creation, maintenance and adoption of open spaces and recreational facilities
community or affordable workshop space
CCTV
provision or adoption of new highways and public rights of way
travel plans
the removal of new residents' rights to parking permits
local employment and training strategies
measures to encourage sustainability and bio-diversity, such as green roofs etc

Major applications requiring a S106 Agreement

Where significant impacts are expected, we and the developer will negotiate a S106 Agreement, advising the necessary items that the developer must do or provide to balance the impacts.

We consider all major applications (i.e. those which involve the provision of 10 or more units or 1,000 sq m or more of commercial space) as they're most likely to have a level of negative impact that will require mitigation.

Our Development Team meets every fortnight to determine potential planning obligations for individual applications in partnership with the Planning Officer.

Amending or varying a Section 106 Agreement

A Section 106 planning obligation may be changed (known as a Deed of Modification) or discharged in two ways:

Within five years of the date of the completion of the obligation, at any time, by agreement between us and the person or persons against whom the obligation is enforceable.
After five years beginning with the date the obligation was legally completed (or a later date specified in the obligation itself).

For a request for the agreement to be amended within five years, you will need to set out reason why this is necessary to us.

In both cases, the proposal for modification or discharge should be submitted to us by a formal application. A copy of the application form can be found below. We will determine the application (i.e. after five years) in one of the following ways:

The obligation is no longer needed to serve its original intended purpose, it may be discharged.
If we consider that the obligation is still needed to serve its original intended purpose, but that this can be achieved by modifying the obligation in the way proposed in the application, we can agree to modify the obligation.
If we consider that the obligation still serves a useful purpose, we can refuse to discharge the relevant obligation.

You can download the relevant application:

Download the Deed of variation or modification of a S106 planning obligation form (PDF, 372KB)

Fees

The fee for this application is £234.00 (plus, legal fees).

Vacant Building Credit

Vacant building credit was introduced following the ministerial statement released on the 28 November 2014 and provides incentives to developers to bring forward development on brownfield sites which contain vacant buildings that are capable of beneficial use.

Read more about planning obligations on gov.uk.

Other guidance

The government have set out the latest planning practice guidance on their planning obligations website.

Planning obligations on gov.uk

The Practice Guidance builds upon the National Planning Policy Framework (NPPF) which specifically addresses planning obligations in paragraphs 203-205.

View the National Planning Policy Framework

There is also useful information regarding the legal tests for seeking planning obligations, more information about Section 106, highway matters and the latest planning news.

What supporting documents do you need?

We recommend you submit a pre-application for complex major applications so that the S106 requirements ("Heads of Terms") can be identified and agreed as early as possible.

View Heads of Terms template

Fees

We charge a Legal Fee for the preparation, checking and production of S106 Agreements and Undertakings.

These fees are included in the S106 Agreement or Undertaking and become payable in the period after approving planning permission and before the formal completion of the Agreement or Undertaking.

S.106 and Monitoring Fees due:

In September 2019 the Government introduced some important changes concerning the operation of developer contributions by reforming the Community Infrastructure Levy Regulations. These changes included the reintroduction of monitoring fess for clauses in s.106 agreements and the removal of the pooling restriction that limited the number of financial contributions that could be drawn together to fund an infrastructure project.

Colchester has decided to reintroduce appropriate monitoring fees based on the government’s guidance:

See the guidance

The ability to charge a monitoring fee is set out in section 10 of the Regulations:

See the regulations

Further information is provided at: