Agenda item

Report of the Director for Development and Economic Growth

The Team Manager Planning delivered a presentation to the Group about Infrastructure Delivery and provided answers to the five questions that had been asked.

The Team Manager Planning provided the Group with some background information, being that infrastructure providers often gathered money from multiple development pots which while this may delay work until all of those had been collected, could also enable more to be delivered and with greater efficiency than if funded piecemeal. He explained that it was not possible to cross fund between s106 pots of money and clarified that the role of the Council was to work with relevant partners to identify infrastructure needs arising from a development, secure funding to meet those needs, and to collect the money secured through the legal agreements and make it available to the infrastructure provider/s.

In relation to infrastructure triggers and their monitoring, the Team Manager Planning explained that triggers for s106 and Community Infrastructure Levy (CIL) were different, with CIL triggers all being pre-defined in the instalments policy. He informed the Group of the various levels of CIL contributions required for small, medium and large developments and confirmed that as all payment due dates were time based, it was easy to monitor whether payment had been made on time. He added that development completion was monitored through regular updates from Council Tax.

In relation to s106 payments, the Team Manager Planning explained that triggers were bespoke negotiated for each development and were rarely time based, more often linked to events such as commencement of development or percentage occupation. He said that payments could be linked to the developer realising a return on their investment for larger developments, were often paid in instalments and depending on what was to be funded, related to when would be best to deliver that provision, for example it could be beneficial for a school to be built early. He added that s106 could also secure works rather than financial payments and that works could be to directly facilitate the development or to offset its impacts on services and infrastructure.

The Team Manager Planning informed the Group that s106 triggers were monitored through Council Tax information, annual monitoring undertaken by the Planning Policy Team and from estimates provided by developers at previous trigger stages. He explained that on and off site physical delivery had to be monitored directly, but that functionality of infrastructure could not be monitored by the Council and as such was not signed off.

The Team Manager Planning explained that enforcement of s106 was conducted through legal action for breach of contract and that CIL had inbuilt penalties and functions with the Council being able to apply stops functions, late payments and surcharges. He added that in relation to CIL, a developer needed to inform the Council of commencement onsite and forfeited the facility to make staggered payments if they did not do so.

Councillor Thomas referred to the visibility of s106 to town and parish councils and the level of understanding and input that they had into what was asked for. She said that the things asked for were often not things that the community would want or prioritise. She asked how the process could be improved to include consultation with them and their input.

The Team Manager Planning said that s106 agreements were initially drawn up through negotiation and were informed by a variety of factors, including cashflow and local priorities as to what was seen as being vital to secure. He said signatories were usually the developer, the Council and sometimes the County Council and that parties who were not signatories could not have such input. He said part of the consultation asked for information about aspects that would be affected by a development and that this was when town and parish councils could submit their requests.

The Chair asked about s106 notifications and the Team Manager Planning said that infrastructure providers were informed when the funding for their contribution had been collected, such as notifying the County Council when education money was available.

Councillor Thomas said that she did not think that most town and parish councils understood that they needed to set out their requests at the consultation stage of a development and said that they also did not have chance to comment on other requests put forward.

Councillor Chewings suggested that this s106 be included as an agenda item at the next Town and Parish Conference.

The Team Manager Planning said s106 requests could only be for infrastructure necessary to make the development acceptable and to meet the needs of the development, rather than for facilities elsewhere in a community. In relation to play areas, he said that the Council’s Communities Manager usually advised on what would be acceptable for the given scale of a development. The Service Manager Economic Growth and Property added that the Communities Team were currently consulting on a refresh of the Council’s Play Strategy, which was used to inform s106 requests, and that this would shortly go out to all Members and town and parish councils for their input.

In relation to delays to delivery programmes, the Team Manager Planning said that s106 agreements set out the way in which funding for delivery was collected but that there were no timescales for when the works needed to be delivered by. He said that there was often a repayment clause which was often set at ten years after payment of the last instalment, and as such the Council had systems in place to communicate with infrastructure providers to ensure that they claimed the money before repayment was due. He said that the Council had never had to return any money.

In relation to enforcement, the Team Manager Planning said that for s106 this was through legal action for breach of contract and that if a developer could demonstrate that the delay was despite them having actively tried and made ‘best endeavours’ to deliver something, then this could be used as a legal defence.

The Team Manager Planning informed the Group that if there were delays to major infrastructure works the Council aimed to keep Ward Councillors involved.

In relation to CIL money, the Team Manager Planning explained that this did not directly secure works and was spent by the Council according to its Priority Funding List which was reviewed every three years and which was published on its website.

The Team Manager Planning presented an Infrastructure Projects list and their progress towards completion to the Group.

In relation to how, when and why changes were made to s106 agreements, the Team Manager Planning said that changes could be made at any point and were done through Deeds of Variation. He said that any changes needed to be agreed by all signatories and that parties should not unreasonably refuse to consider amendments. He said that changes could be for any manner of reasons, including those driven by changing economic circumstances, legislative or policy changes, where clarification was required or where infrastructure needs had changed.

In relation to engagement with stakeholders, the Team Manager Planning explained that the Council held regular meetings with NHS and partners and consulted with stakeholders. He explained that the Council notified stakeholders when it had received contributions that they were likely to deliver and notified them when the repayment dates was looming but confirmed that the Council could not enforce delivery of a facility.

In relation to lessons learned from past infrastructure delivery, the Team Manager Planning said that it was difficult to learn from matters where amendment had been purely as a result of time elapsed as the Council and partners could not predict the future but only make best estimates at the current time. He noted that there was learning in relation to offsite infrastructure which had been secured by either s106 or planning conditions, both of which had different enforcement mechanisms and as such reflection on what had worked best in different circumstances could be done.

Councillor Thomas asked for a recommendation to be added for the Infrastructure Monitoring report to be brought to Scrutiny on an annual basis to give opportunity for review of progress of projects. This was seconded by Councillor R Walker and Agreed by the Group.

The Service Manager Economic Growth and Property explained that much of the work was outside of the Council’s control and represented collection of money over a long period of time and this would be an information item only.

The Chair highlighted that bringing the report to the Group annually would enable Members of the Group to have oversight and feedback information to the town and parish councils on their respective infrastructure projects.

Councillor Soloman referred to Deeds of Variation and how it could be confusing to know where and when something was due to be delivered and asked whether it would be possible for summaries to be provided to town and parish councils after a series of variations had occurred.

Councillor Thomas noted that Deeds of Variation did not go out to consultation and asked whether they could go out to town and parish councils for comment.

Councillor Thomas asked whether when consultations on large developments were issued whether a briefing note could be sent to town and parish councils to advise them that this was the time for them to submit their infrastructure requests for s106 funding.

Councillor R Walker referred to the excellent stakeholder and community engagement that had taken place for the Fairham development but recognised that this was not possible for smaller developments and suggested that Ward Members should fulfil a communication role with their communities.

In relation to Deeds of Variation, the Team Manager Planning advised that each signatory was duty bound to not unreasonably refuse amendments tabled and involving non-signatories would risk that and invite comments that could not be acted upon.

The Chair asked if communication about Deeds of Variation could take the form of an information note to town and parish councils following agreement of the variation.

It was RESOLVED that the Growth and Development Scrutiny Group considered the contents of this report and recommended that the Infrastructure Monitoring report to be brought to Scrutiny on an annual basis.