Section 106 planning issue
Discussion
My wife and I moved into a new build site last July and have been getting to know our new neighbours since then. It appears we all agree on one thing - the children/infant playground installed by the developer is not needed as there are no children of the age group it is built for on the development. The playground was insisted upon by the local parish council as part of the planning process and was installed by the builder to meet this obligation.
The issue is nobody wants it and the facility costs the management firm £1,000 per year to insure. The management company we are now all members of has approached the local parish council to adopt the playground as it was installed at their behest but they do not want to do this, presumably as they will be liable for the insurance premium and emptying the bin that is part of the install. The bin appears to be filled by people who wander through the estate to the public footpath but as it is not currently adopted by the local parish council the bin collectors don't empty it on their regular rounds.
My question is if the local parish council won't adopt the playground despite requiring it's installation can the residents in the guise of the management company remove it to save the £1,000pa insurance premium and having to empty the bin ourselves?
To me it seems strange that a section 106 planning requirement can be insisted upon by a local parish council who then do not want to adopt the item that is installed under that obligation. Is there any precedent on record to remove a playground installed under a section 106 order that is not required/wanted by the residents and not going to be adopted by the local parish council.
Thoughts gratefully received.
The issue is nobody wants it and the facility costs the management firm £1,000 per year to insure. The management company we are now all members of has approached the local parish council to adopt the playground as it was installed at their behest but they do not want to do this, presumably as they will be liable for the insurance premium and emptying the bin that is part of the install. The bin appears to be filled by people who wander through the estate to the public footpath but as it is not currently adopted by the local parish council the bin collectors don't empty it on their regular rounds.
My question is if the local parish council won't adopt the playground despite requiring it's installation can the residents in the guise of the management company remove it to save the £1,000pa insurance premium and having to empty the bin ourselves?
To me it seems strange that a section 106 planning requirement can be insisted upon by a local parish council who then do not want to adopt the item that is installed under that obligation. Is there any precedent on record to remove a playground installed under a section 106 order that is not required/wanted by the residents and not going to be adopted by the local parish council.
Thoughts gratefully received.
From my couple of years working at Barratt Homes this is a fairly common thing. Local councils set certain requirements (road, shared space, playgrounds etc) to be built to 'adoptable standards' which the builders have to agree to else they don't get planning permission. Then, once the development is complete the council will find any/every reason not to adopt it.
I doubt the council will allow you to remove the site it's specified must be built so your only real option is to push for adoption I would say.
Hopefully my experience is well out of date and there's an easier way to relieve the management company (i.e. residents) of the cost!
I doubt the council will allow you to remove the site it's specified must be built so your only real option is to push for adoption I would say.
Hopefully my experience is well out of date and there's an easier way to relieve the management company (i.e. residents) of the cost!
Don't blame the Parish Council.
Where we used to live, one development had to include a village hall. Despite there already being a village hall in the village. What the village needed was a children's nursery, but the district council thought it was perfectly OK for the toddlers to be driven to the next village five miles away.
It is common for PCs to refuse to adopt these "facilities" as a protest at being forced on them. The consultation often done by the District is nothing more than lip service.
Where we used to live, one development had to include a village hall. Despite there already being a village hall in the village. What the village needed was a children's nursery, but the district council thought it was perfectly OK for the toddlers to be driven to the next village five miles away.
It is common for PCs to refuse to adopt these "facilities" as a protest at being forced on them. The consultation often done by the District is nothing more than lip service.
Highly unlikely that it was the Parish Council that insisted on this, unless they have a Neighbourhood Plan they have virtually no say on development. District Councils etc will let them take the blame though :-)
I think there is a planning requirement at some level for developments to have sufficient play areas for the residents of the new development - it may be in the Local Plan.
For a development where I live the developer negotiated a payment in lieu of providing the play area in the development, and the money was used to expand the existing play area in the local area
I think there is a planning requirement at some level for developments to have sufficient play areas for the residents of the new development - it may be in the Local Plan.
For a development where I live the developer negotiated a payment in lieu of providing the play area in the development, and the money was used to expand the existing play area in the local area
I suggest a copy of the s106 Agreement is your starting point to see if it specifies anything about providing AND maintaining the play area for a period of time . You may find that there is no obligation to keep it? It depends how switched on the Planners were when agreeing the terms.
Yex RS4 said:
My wife and I moved into a new build site last July and have been getting to know our new neighbours since then. It appears we all agree on one thing - the children/infant playground installed by the developer is not needed as there are no children of the age group it is built for on the development.
Yet.The Section 106 will be linked to the Planning approval by a Planning Condition.
You'll therefore need to both overcome the S106 (which is a legal agreement that usually both the Local Authority and the developer have signed up to, though sometimes its a 'Unilateral Agreement' where just the developer has made a one-sided legal 'promise'), and also vary or remove the Planning condition.
It's technically possible, but not straightforward. As Hawkshaw has suggested, you'll also struggle to convince the LPA that whilst there are no children who would use it on the development at present, that that won't change some time in the future... or that the play area doesn't have wider community benefits.
If you wish to pursue it, you'll need a Planning Consultant in the first instance (to negotiate with the LPA on whether they will accept its removal), then a solicitor to sort out amendment/extinguishment of the legal agreement.
You'll therefore need to both overcome the S106 (which is a legal agreement that usually both the Local Authority and the developer have signed up to, though sometimes its a 'Unilateral Agreement' where just the developer has made a one-sided legal 'promise'), and also vary or remove the Planning condition.
It's technically possible, but not straightforward. As Hawkshaw has suggested, you'll also struggle to convince the LPA that whilst there are no children who would use it on the development at present, that that won't change some time in the future... or that the play area doesn't have wider community benefits.
If you wish to pursue it, you'll need a Planning Consultant in the first instance (to negotiate with the LPA on whether they will accept its removal), then a solicitor to sort out amendment/extinguishment of the legal agreement.
GiantEnemyCrab said:
Slightly related, if I email developer and council with a 'when are you going to adopt the estate', am I likely to get an answer? Been 6 years.....
Surely the developer wants their S106 cash bond back?
Adopt what? POS or highways? (Highways is Section 38 of the Highways Act, rather than Section 106 of the Planning Act).Surely the developer wants their S106 cash bond back?
Local Authorities can be incredibly slow about this sort of thing for both, though. Last developer I worked for, we employed a guy whose sole job it was to chase down adoptions.
Equus said:
GiantEnemyCrab said:
Slightly related, if I email developer and council with a 'when are you going to adopt the estate', am I likely to get an answer? Been 6 years.....
Surely the developer wants their S106 cash bond back?
Adopt what? POS or highways? (Highways is Section 38 of the Highways Act, rather than Section 106 of the Planning Act).Surely the developer wants their S106 cash bond back?
Local Authorities can be incredibly slow about this sort of thing for both, though. Last developer I worked for, we employed a guy whose sole job it was to chase down adoptions.
Would there be a different person in the council to chase up?
GiantEnemyCrab said:
Would there be a different person in the council to chase up?
Yes, probably.If it's a 'normal' Local Authority structure, the roads are adopted by County Council Highways Department, using a Section 38 Agreement, whereas the Public Open Space, if it is to be adopted*, will be by the Borough Council 'Parks Department' (or whatever they call themselves - ours is 'Parks and Open Spaces').
* Many Local Authorities won't adopt POS these days, because of the long-term cost implications of maintaining it, and insist that a private management company - usually paid for by residents, as per the OP - is put in place to maintain it, instead.
Thanks for all the replies folks, very much appreciated and quite insightful 
The development is under the control of the Parish Council and it's Neighbourhood Plan so I think I will ask the management company to request a copy of the S106 documentation and have a read through it to see if it provides any clues as to adoption etc.
We have had a few resident's get togethers (read booze ups on the green area) where those who are planning to start a family once the economic climate settles down have stated they are not interested in the playground and would not want their kids to use it. I don't know why as they haven't said anything specific, but as I said the general consensus is that nobody wants it, particularly if we are going to have to pay ever increasing insurance premiums for it going forward.
The mention of a village hall by one poster is interesting. The village has had a few developments go up in it over the last 2-3 years and a new village hall is scheduled to be built very soon (via contributions from developers) as a threshold for occupation of new homes has been reached. There is an existing village hall that serves it's purpose well but apparently the Parish Council want a new one with more modern facilities, a multi purpose playing surface and well laid out and lit parking. Nobody knows what is to happen to the existing village hall, but the gossip is that it is to be sold, although nobody in the village can understand what the site will be used for as it is very restrictive in terms of access for residential properties ?
Anyway, who knew village life could be such fun
The development is under the control of the Parish Council and it's Neighbourhood Plan so I think I will ask the management company to request a copy of the S106 documentation and have a read through it to see if it provides any clues as to adoption etc.
We have had a few resident's get togethers (read booze ups on the green area) where those who are planning to start a family once the economic climate settles down have stated they are not interested in the playground and would not want their kids to use it. I don't know why as they haven't said anything specific, but as I said the general consensus is that nobody wants it, particularly if we are going to have to pay ever increasing insurance premiums for it going forward.
The mention of a village hall by one poster is interesting. The village has had a few developments go up in it over the last 2-3 years and a new village hall is scheduled to be built very soon (via contributions from developers) as a threshold for occupation of new homes has been reached. There is an existing village hall that serves it's purpose well but apparently the Parish Council want a new one with more modern facilities, a multi purpose playing surface and well laid out and lit parking. Nobody knows what is to happen to the existing village hall, but the gossip is that it is to be sold, although nobody in the village can understand what the site will be used for as it is very restrictive in terms of access for residential properties ?
Anyway, who knew village life could be such fun
You should be able to get the 106 agreement from the District Council's planning portal.
My personal experience of Neighbourhood plans is that they are often ignored by planners. One plan I know of wanted tandem parking not to be used as residents rarely park one car behind the other and park on the street (or the front lawn if if is HA). The next development ended up with 70% tandem parking.
My personal experience of Neighbourhood plans is that they are often ignored by planners. One plan I know of wanted tandem parking not to be used as residents rarely park one car behind the other and park on the street (or the front lawn if if is HA). The next development ended up with 70% tandem parking.
Slow.Patrol said:
My personal experience of Neighbourhood plans is that they are often ignored by planners.
They shouldn't be: once they've been examined, they carry as much legal weight as the Local Plan (which means that, along with the Local Plan, they should be taken as the starting point for any Planning decision unless material considerations dictate otherwise). In those terms, they actually outrank the NPPF (albeit both Local and Neighbourhood Plans can be considered out-of-date if they are not consistent with the latest version of the NPPF).
Equus said:
They shouldn't be: once they've been examined, they carry as much legal weight as the Local Plan.
Yeah, you would thinkhttps://www.bbc.co.uk/news/uk-england-wiltshire-64...
There have be other cases as well, but Google is failing me. I did a bit of work on a NP a few years ago and there were a few situations where the developer had taken the appeal to the planning inspector and had a refusal overturned against the NP. I remember sitting in a meeting after one of the appeals and discussions as to why we were bothering.
It seems, from the case above that because the plan was eight years old, it was considered out of date.
I know of one coastal area where their neighbourhood plan was against the extension of small existing homes as there was a shortage of starter properties, only to have a number of bungalows being given permission to add a storey, converting a two bed retirement bungalow into what will be a four bed detached house, probably a holiday let.
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