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