Agenda item

Guidance on Maintaining Public Open Spaces

The Committee

The Chairman read out recent correspondence from Caldecote Parish Council which asked the Committee to consider three issues, which were considered in turn by the Head of Legal Services:

·                      The enforcement of Section 106 agreements

·                      The drafting of legally watertight Section 106 agreements

·                      Guidance on funding the maintenance of Public Open Spaces

The Enforcement of Section 106 Agreements

The Head of Legal Services explained that these questions had first been addressed at the Committee meeting on 23^rd October 2003. He stated that the Council had declined Caldecote Parish Council’s request to take legal action against the developer and had instead taken action short of actual legal proceedings, which had eventually resulted in what was likely to be a successful outcome.

Advising Parish Councils on Section 106 Agreements

The Head of Legal Services presented this report which informed the Committee on how the Council would be advising Parish Councils on Section 106 agreements. He explained that the “Note in Respect of Proposed Section 106 Agreements” in Appendix A, which would be sent to parish councils, was an amended version of the document sent to all parties seeking a Section 106 agreement. He highlighted and justified each amendment to the document:

·                      The agreement could include the County Council

·                      The agreement was relevant to the land, not the current owner

·                      Contributions from the developers could be dealt with by apportioning the aggregate amount on a per completed dwelling basis

·                      Parish councils needed to aware that the amenity land would not remain in private ownership and the terms of transfer needed to be negotiated with the developers

·                      The District Council has discretion on whether to enforce the terms of the Section 106 but the parish council could seek to enforce terms that only affect them

·                      The developers need to ensure that promised community infrastructure be delivered before the trigger points are met

·                      The agreement will be likely to include prohibition of further development until any default situation is remedied

It was noted that the agreement at Caldecote included prohibition of further development at 98% occupation, which was not a realistic sanction and was virtually unenforceable. It was understood that the need to provide facilities before the trigger points were met, would be incorporated in future Section 106 agreements.

The Head of Legal Services explained that the Section 106 agreements required the acquiescence of all parties and it was unlikely that developers would agree to draconian measures that could be taken against them in the event of non-compliance. He asserted that the majority of Section 106 agreements resulted in satisfaction for the parish councils concerned. He knew of only three instances where there had been substantial problems. Councillor Monks stated that Over were satisfied with the outcome resulting from their Section 106 agreement.

Councillor Dr DR Bard, Planning and Economic Development portfolio holder, stated that it was imperative that parish councils were encouraged to seek legal advice when drafting a Section 106 agreement. It was noted that the developer should pay for the legal advice received by the parish council. It was agreed that the “Note in Respect of Proposed Section 106 Agreements” needed to include a line advising parish councils to seek independent advice. It was understood that the District Council needed to remain neutral throughout the process.

It was suggested that Section 106 agreements needed to comply with the Council’s Corporate Objectives and annual priorities; the Head of Legal Services stated that the Development and Conservation Control Committee ensured that successful planning applications complied with this.

It was agreed that a “plain English” version of the “Note in Respect of Proposed Section 106 Agreements” in Appendix A was required to complement but not replace the original document.

Guidance on Maintaining Public Open Spaces

Councillor Mrs GJ Smith stated that the Grounds Maintenance Task and Finish Group had received a number of complaints from parish councils regarding Section 106 agreements, including references to the cost of maintaining Public Open Spaces. She asked whether the Committee wished the Task and Finish Group to investigate this matter further, or whether a separate Task and Finish Group should be set up.

The Committee