Agenda item

Ms Barbara Cooper, Director Economic Development, Mr Nigel Smith, Head of Development Investment (KCC) and Mr Brian Morgan, Assistant Director of Development and Community Strategy (Maidstone Borough Council) will be attending for this item.

(1)        Mr Smith introduced the report and explained that the provision of adequate infrastructure and facilities alongside housing growth was essential if we are to achieve aspirations in respect of sustainable communities and ultimately places where people want to live. It was the Government’s expectation that developers would make an appropriate contribution to the required infrastructure to deliver this objective and, therefore, make proposals acceptable in planning terms. The report outlined the County Council’s approach, particularly with regard to, the process for agreeing Section 106 agreements, monitoring performance, dealing with recession and the way forward.

(2)       Mr Morgan, Assistant Director of Development and Community Services at Maidstone Borough Council, referred to the planning tests for Section 106 agreements as set out in the report.  He explained that prior to the recession when negotiating on major developments, the Borough Council would seek 106 contributions if appropriate, for highways, education, libraries, social services, affordable housing, open spaces, primary care facilities, community facilities and community safety.  This list was not exhaustive and would vary depending on the development.  Due to the length of this list the Council had been forced to prioritise how contributions were being used even prior to recession.  Since the recession the position had changed.  In 2008-09, 411 houses had been built in Maidstone and up until 3^rd quarter of the last financial year 400 houses had been built but the majority of these were affordable housing under existing planning permissions.

(3)       Mr Morgan stated that in order to stimulate the provision of market housing there was a need to re-negotiate existing section 106 agreements and to take a different approach with new agreements. Authorities were going to have to go back and review priorities and accept that every item on the list was not deliverable.

(4)       Mr Morgan explained that the Section 106 system was undergoing change.  The Community Infrastructure Levy was coming forward, although this had not yet been finalised.  He believed that where we may get to is in effect to have a tariff for the provision of general infrastructure but there would also still be the need for Section 106 agreements to deliver on site provision, for example affordable housing and any specific issues relating to highway improvements in the site. The key issue was how to pitch the tariff without stifling the provision of homes. He mentioned that the Borough Council were developing their core strategy and when looking at the level of infrastructure necessary for the 11080 homes which they needed to provide by 2026 the cost of this would run into hundreds of millions of pounds.  Under the Social Housing Relief which came into force on 6 April 2010 it appeared that affordable housing was exempt from Section 106 agreements, which for Maidstone Borough would remove 40% of housing from the need to make contributions.  Clarification on this was being sought from the Government Office for the South East.  Also in the planning period up to 2026 Maidstone Borough Council had to provide a certain number of jobs which again would have an implication in terms of infrastructure, for example highways but there was also the addition issue of whether they should seek contributions towards skills training and education.

(5)       Mr Smith explained that when looking at the provision of infrastructure one of the tests was to look at what the gap in provision would represent in terms of economic and social risk and they looked at triggers in relation to reconfiguring the cash flow.

(6)       A Member referred to some developments where the developer would develop the site to a level below the trigger size that would require them to make contributions, which level the provision for facilities for the site incomplete.  Mr Smith stated that he was conscious of that and provisions were now put into legal agreements to avoid that situation. Mr Morgan confirmed that a key issue for local authorities was how to protect the provision of the infrastructure needed for the development through the structure of the legal agreement. 

(7)       In response to a question Mr Smith explained that there was a government circular that set out what Section 106 agreements could provide for one of the tests was that the facilities required should be directly related to the impact of the development, if a local authority went outside of this they could be challenged.

(8)       Mr Smith confirmed that agreements relating to the route of Heavy Goods Vehicles to a development would more likely be the subject of a planning condition rather than a Section 106 agreement.   He also explained that if money set aside under a Section 106 agreement for the provision of a certain facility was not required for that purposes, it would be paid back to the developer.

(9)       A Member expressed the view that there should be a Sub-Committee of the Environment, Highways and Waste Policy Overview Committee to take over the reviewing of Section 106 agreements.  This role was currently carried out by the Cabinet Scrutiny Committee’s Informal Members Group on Budget Issues.

(10)     Mr Morgan confirmed that the local authority who signed the Section 106 agreement was responsible for monitoring it.  If an agreement was made under the Highways Act then this would be monitored by Kent County Council as the highway authority. 

(11)     Mrs Dean requested a note of who was responsible for enforcing the agreements that were in place with District/Borough Councils

(12)     In response to a question Mr Morgan explained that the timing for Section 106 monies to be paid depended on the way that the agreement had been structured. He also confirmed that it was possible for Section 106 monies to be passed onto Parish Councils by the District Council.

(13)     Mr Morgan explained that if a developer went into liquidation before the Section 106 monies had been paid, the agreement ran with the land and would therefore still be valid.

(14)     The Chairman asked if it would be possible for Section 106 agreements to provide for contributions to be made towards improving Broadband infrastructure as this was an issue that had been raised at the Corporate Policy Overview and Scrutiny Committee on 8 April 1010.  Mr Morgan stated that he was not confident that this would fall within the test in the government circulate, a key question was would the authority refuse planning permission if no provision was made in the agreement. 

 (15)    RESOLVED that:-

            (a)  Mr Morgan and Mr Smith be thanked for attending the meeting and answering Members’ questions

            (b) the comments made and the responses to the questions asked by Members help inform the report to the Regeneration and Economic Development Policy Overview and Scrutiny Committee.