DORSET COUNTY COUNCIL SOLAR FARM COMMUNITY SUPPORT PROJECT – PLANNING OBLIGATIONS FOR COMMUNITY BENEFITS- A briefing paper
Background
1. A planning obligation is a legal document in which a developer/landowner commits to provide mitigation for a development.
2. The commitments given in a planning obligation are enforced by the Local Planning Authority (LPA). That is usually the District Council but can also be the County Council. A Parish Council is not a Local Planning Authority.
3. Planning obligations take two forms. The first is an agreement between the developer/landowner and the LPA. An agreement is used where the developer/landowner expects the LPA to do something such as agreeing the specification for a new road before it is built by the developer. The alternative is a unilateral undertaking is where the developer/landowner commits to the mitigation measures but without any requirement on the LPA to do anything. However the unilateral undertaking is given to LPA, although the beneficiary of the undertaking is a third party. Whether an agreement or a unilateral obligation is used depends on the particular development and the nature of the commitment being given by the developer/landowner.
Legal Status
4. A planning obligation is normally given by a developer to provide measures in order to make a particular development acceptable in planning terms. A planning obligation can only be taken into account when granting planning permission if it satisfies a number of statutory tests. Put simply these are that the obligation is reasonable, necessary and relates to the particular development. In relation to solar farms it is likely that a planning obligation providing community benefits will not be a factor that the LPA can take into account. Or, to put it another way, an LPA is unlikely to refuse planning permission simply because there is no planning obligation providing for community benefits.
5. Once a planning obligation has been made, it ‘attaches’ to the land rather than the developer/landowner personally. To use a legal phrase, it “runs with the land”. That means once the landowner/developer has signed the planning obligation, the obligation will remain enforceable against any future owner if the land is sold.
The s106 obligation has to be signed by someone with a legal interest in the land. In practice, that means the freehold owner, a long leasehold owner and anyone with an option to buy or mortgage. The developer would normally also sign if it is not yet an owner.
The obligation is registered as a local land charge. It can also be registered at the Land Registry but most developers are reluctant to agree to the latter. In either case it’s up to the authority to whom the obligation is given to register it.
Planning Obligations for Community Benefits
6. There are several mechanisms by which a developer can provide community benefits. This could be by a simple one-off or periodic payment by the developer/owner to the LPA or Parish Council. At the other end of the spectrum could be a requirement that the developer/owner enters into an agreement with the Parish Council which could set the amount and frequency of payments and the purposes for which any such payments can be used by the community.
7. Both the level of funding and the delivery mechanism are matters for negotiation. However, whilst most developers are willing to enter into negotiations, if the community benefits are to be provided through a unilateral undertaking then the developer can simply give that as a fait accompli.
8. A planning obligation is not limited to the provision of a financial payment. It could also require the developer/owner to provide something tangible such as renewable energy equipment for the community or education facilities relating to renewable energy. Again these are matters for the landowner/developer and the community to negotiate.
Summary
9. A planning agreement provides a legally binding mechanism by which the community can secure benefits from solar farms. The commitments given in a planning obligation will remain in place irrespective of whether the original developer sells the land or not. However, it must be borne in mind that a planning obligation for community benefits may well be something which the LPA cannot take into account when deciding whether or not to grant planning permission. It must also be borne in mind that the terms of any planning obligation are a matter of negotiation where the developer/landowner holds the upper hand.
Philip Crowther
Solicitor
for Head of Legal and Democratic Services
Dorset County Council