Pre-Application Delivery Protocols, Major Application Protocol and Section 106 Protocol

Summary Notes

Introduction

The Council’s Planning and Development Service has adopted three best practice notes that are intended to guide applicants and developers and facilitate the determination of significant applications. The three ‘protocols’ relate to carrying out pre-application discussions, in the submission of major applications and those applications that may require the applicant to enter into a legal agreement with the Council, and possibly other parties such as Devon County Council, to obtain either in-kind or financial contributions towards a range of infrastructure and services (for example, community facilities, public open space, transport improvements, infrastructure improvements or affordable homes).

Copies of the full text of the Best Practice notes are also available on this website and what is set out on this page is intended to provide a summary of this guidance.

Pre-Application Discussions

The Planning Advisory Service identifies a number of advantages in preparing what it terms a ‘protocol’ to agree methods of communication between applicants / agents, the local planning authority and statutory consultees and identifies a number of advantages from such an approach. These include helping avoid incomplete applications and delays in registration, raising the quality and acceptability of submissions, helping to ensure consistency of advice throughout the process and improving application determination times.

Local planning authorities are therefore encouraged to facilitate the availability of pre-application advice through information and/or discussions for all types of application. The purpose of such engagement is to guide applicants through the process and to ensure that applicants are aware of their information requirements in accordance with government advice. This is particularly useful for larger and more complex schemes and can help applicants by identifying the information and details that should be submitted with their applications.

The relevant document ‘Pre-Application Delivery Protocol’ sets out the responsibilities of the Council and prospective applicants and also suggested procedures to facilitate pre-application discussions.

Major Applications

The Council’s ‘major applications protocol’ advises that a ‘development team’ approach will be used by the Planning Unit in dealing with major planning applications. In practice, this means that an application which raises a range of different concerns (for example, affordable housing, public open space, flood risk and contaminated land) will be considered by a team of officers each with a specific area of responsibility and co-ordinated by the senior planning officer. The protocol also puts in place a number of requirements both on the applicant and on the Council as local planning authority to ensure that the submission is dealt with promptly and fully involves the community. These arrangements include in certain circumstances a contractual requirement for the applicant and the Council to enter into a pre-application agreement whereby full regard is had to pre-application advice and the application is determined on a best endeavours basis in accordance with an agreed timetable agreed beforehand between the applicant and the Council.

Planning Agreements

In many cases, major planning applications will attract a requirement for the developer to contribute towards the upgrading of infrastructure or community facilities reasonably required as a result of the granting of planning permission. Such contributions are normally secured by means of planning obligations, also known as Section 106 agreements, and are negotiated in the context of the grant of planning permission by the local planning authority through powers granted by the Planning Acts.

Government guidance makes it clear that a planning obligation should be necessary, directly related to the proposed development, fairly and reasonably related in scale and kind to the development and reasonable in all other respects. Planning obligations should only be sought where necessary to make a proposal acceptable in land use planning terms.

Such agreements ‘run with the land’ and are enforceable against the original covenantor and successors in title and are registered as a formal land charge.

To retain public confidence, the arrangements surrounding the negotiation of planning obligations are carried out in accordance with the fundamental principle that planning permission may not be bought or sold.

Negotiations on planning agreements should be conducted in a way which is fair, open and reasonable and as part of this process it is intended to publicise (for example, on this website) details of planning agreements negotiated by the Council in order to highlight the facilities, services or infrastructure that that have been secured and, in the case of financial contributions, how the Council intends to spend the money on behalf of the Council taxpayer.