In this article, Carrie will be looking at the section 106 agreement. She will be looking at what a section 106 agreement is, as well as how this process worked at one of Berkley’s developments.
What is a S106 agreement?
A section 106 agreement is essentially a legal agreement between the local planning authority (LPA – seen in example below) and the developer, detailing specific conditions in which permission will be given for the development to take place; these permissions or agreements are also known as planning obligations or planning conditions (Housing, 2016) .
The conditions included within this agreement are also linked to the planning permission and must be agreed as early as possible within the build process. It is worth noting here that conditions can be appealed and must be kept to a minimum; they should only be imposed where they are necessary and must be reasonable.
These conditions are used to mitigate impact on the local area as well as benefit or improve and compensate for any loss. Examples of these conditions could be:
- A proportion of affordable housing to be included.
- Addition of commercial spaces.
- Green roofs or landscaped areas.
- Public right of way or increased transport provision.
The Planning Act 2008 also stipulates that a Community Infrastructure Levy (CIL), a planning charge, may also now be charged as part of the agreement to support the development of the wider area. I will now look at how this affected the build of one of our developments.
The Development
The development I have chosen to focus my article on is 190 strand, a luxury private development in Westminster London. Comprised of 216 apartments over 2 buildings, this development also includes 3 commercial units, private basement parking, leisure facilities and courtyard garden.
Build complete in 2018, this development took the place of two previous, post-war built office blocks (left): Abbey Life House and Canberra House (Compton, 2004). As you can see from these images, 190 Strand was given a design that aesthetically blended it with the surrounding buildings, something the 1965 buildings were lacking. This may have been down to the S106 agreement, which I will now go on to look at.
The S106 Agreement
The S106 Agreement relating to 190 Strand between Westminster City Council and my company was signed on 15th March 2012, and consists of details on the obligations to be followed not only by the developer (Berkeley St Edward) but also the Council as well as the specific requirements to adhere to the agreement itself.
As per any legal agreement or contract, it starts with the details of those involved in the agreement, as well as any terms used with descriptions. See example below:
The agreement then goes onto define the legal reasoning behind the agreement, stating the “agreement is made pursuant to Section 106 of Act Section 16 of the Greater London Council (General Powers) Act 1974 and Section 111.
S106 Obligations
The schedules included after the details of the agreement include the obligations proposed;
1. Threshold levels 2. Developer designs and carries out the highway works 3. Council to design and carry out highway works 4. Further Developer covenants and obligations: a. Payment Contributions b. The provision of public art c. Affordable Housing d. Green & Brown Roofs 5. Further Council covenants and obligations
1. Threshold Levels
The first schedule is referring to the threshold levels; the area where the development meets the public area, or ‘highway’. This section goes into detail on the process that needed to be taken to make sure that all relevant parties are notified of development prior to the start of construction; in this case, this was the local Council and the Commissioner of Transport. It goes on to stipulate approval needed, such as a TA1 approval, as well as a timeline for works and access as needed.
Was this followed? This schedule covered the time prior to build occupation, this is no longer in effect today. However, when looking through records kept by our build team, it is shown that these were followed through. The works on this threshold area were not complete in time for the first occupation, as per the S106, however this may have been down to changes in the design and also the present Aldwych regeneration works.
2. Developer Designs and Carries out the Highway Works
Following on from Schedule One, it is noted that the developer must complete all necessary highway works and cover the cost for these themselves. For example, should a bus stop or public toilet need to be temporarily moved due to works, any costs would need to be covered by the developer.
This schedule goes on to stipulate that the developer would be responsible for any remedial works needed during and after the build is complete. It also states that the developer must maintain the area in all ways, including ‘sweeping, litter picking and cleaning’.
This Schedule rounds up by confirming that the relevant areas will be handed over to the council, or ‘adopted’, for public use. This will lead onto Schedule Three.
Was this followed? As with Schedule One, this requirement covered the construction period of the development and is therefore no longer in effect today. However, it was tracked and I can see that this was followed throughout this period. Later on in my article I will touch on the specific of the adopted areas.
3. Council to Design and Carry Out Highway Works
In Schedule Two, the agreement stipulates those requirements needed from us, the developer, in regards to highway works. Schedule Three focuses on the Councils obligations in regards to this.
Firstly, the requirements set out in Schedule One and Schedule Two are repeated; I have found that this is recurring throughout the agreement. Some items are mentioned two or even three times, such as the obtaining approval from the council prior to starting any works.
After these have been repeated, the Schedule then goes on to specify the relationship between the Council and the Developer; for example, they would need to work on the design together and both have input.
At the end of this schedule, however, it goes back to reiterating that costs would sit with the Developer and they shall hand over the required areas to the council for public use when complete.
Was this followed? There are highway works designs and correspondence between us and the council saved in our files, which show that these requirements were followed. I will be looking at the design of the Highways works in more detail later on in the article.
4. Further Developer Covenants and Obligations
In this Schedule, the agreement highlights the other requirements requested in order to construct the development. These are:
- Payment Contributions
- The provision of public art
- Affordable Housing
- Green & Brown Roofs
Payment Contributions
As part of the agreement for the construction of this development, certain financial contributions are needed from the developer. These contributions are agreed by the local council and the developer as needed to compensate for any negative impact the development may have whilst being built but also once complete. The Community Infrastructure Levy was introduced in 2010 to allow local councils and authorities to use the contributions made to add to the development of the local area.
Since then, there have been changes to how this levy and all developer contributions are taken and used by the local council. In 2018 to 2019, consultations took place meaning that the levy was reviewed to favour local services within the area. In 2020, the government produced “Planning for the Future” contains details on changes made to the previously known Community Infrastructure; now known as the Infrastructure Levy. “It has been reformed to be a nationally set, value-based flat rate charge” (Ministry of Housing, 2020).
Looking back at the S106 agreement, the first contribution required is for Affordable Housing. The allocation requirements of affordable housing v. private housing on the development has changed since this development began. The Mayor of London, Sadiq Khan has now formally set a target for affordable housing. In an article on Social Housing, it is noted that prior to being made mayor in 2016, he set a target of 35% of new affordable homes from private developers (Wilmore, 2021). However, now the target has been moved to 50%, although no timeline for this target to be met.
The allocation for this development was 22 apartments (working out at 10.18%), and it is stipulated in the agreement that 50% of the Affordable Housing Contribution be paid to the Council for their use building sufficient affordable housing in the local area. The Schedule goes on to include an education contribution, a Victoria Embankment Gardens contribution, and a TFL contribution; The Victoria Embankment Gardens being the public green space at the end of the street in which the development sits. There is also mention of an Environmental Inspectorate Contribution and Environmental Sciences Contribution needed on the commencement of demolition.
Was this followed? I can see from records that these payments were tracked and made. However, there was a change to the affordable housing contribution, which was doubled. Although I can find no record of the reasoning behind this, the 22 affordable units were converted to private residential as approved by Westminster City Council. There is no affordable housing on this development.
The Provision of Public Art
A requirement that I have noted on a number of our developments is that a piece of design-approved public art is provided and displayed in a prominent location. I have included images of a couple of these below:
It is no surprise to me then that 190 Strand has the same stipulation.
It states in the agreement that the approved public art must be in place within 3 months of the development completing. On looking into our company records for this, I found the below included in the design proposal to WCC, showing the proposed artwork and locations:
The first image is a piece of public art by Andy Goldsworthy OBE, a renowned British sculptor, photographer and environmentalist known for producing site-specific sculptures and land art (Tate, n.d.). These works are sustainable and often use recycled products or what is available. As you can see to the right, this is the land art created by Andy Goldsworthy for 190 Strand; it is still in situ today.
The remaining three images are 3 statue heads by Henry Poole that were on the roof of the previous building on this site. Henry Poole was a British architectural sculptor during the late 19th to early 20th century, and a number of his works still survive today.
Was this followed? Yes, it was followed as per the approved design and the artwork was installed. On memory, however, there was a delay on installing the three sculptured heads but the Andy Goldsworthy piece was in place prior to completion as it forms part of the external colonnade walk way.
Affordable Housing
As mentioned earlier in my article, the plan for affordable housing on this development was changed prior to build completion. I have found in our records a Change of tenure S73 proposal, which states the application was made in relation to RN 13/01252/FULL and 10/01281/CAC (Conservation Area Consent). This document is an Explanatory Design Document to support the S73 application to change the quantum and tenure of the dwellings within Block F from 22 no. social rented apartments to 15 no. private sale apartments. It notes that the private amenity space was too small to fulfil the London House Design Guide (LHDG), however the apartments were made far larger that the LHDG to compensate. It goes into detail about what will be kept to same in line with necessary requirements, and confirms that the changes should not have a detrimental effect on the local area.
Green & Brown Roofs
Due to the lack of green, open spaces in London, I have noticed that a number of our development S106 agreements stipulate green and brown roofs. These are not public spaces, however areas where nature can sustain in the built up area and also allows wildlife, such as bats and other animals to thrive.
The S106 stipulates that these must be installed on all blocks bar Temple House (former affordable unit) and maintained at the developers cost for the lifetime of the development.
Was this followed? Yes, the green and brown roofs are in place on all blocks as stipulated and also wildlife areas such as bat boxes have also been in place since the completion of the development.
5. Further Council covenants and obligations
The agreement goes on in Schedule Five to stipulate how the local council must use the contributions given as noted earlier in my article.
Highway works and Landscaping
As mentioned earlier in my article, a large part of the s106 agreement was the highway works to be agreed between WCC and the developer, us. In Appendix Three of the s106 there is a list of those items named that must be completed.
Was this followed? All items in the above list were adhered to, minus the last item: installation of public seating within the public square to be located on Arundel Street as part of the development. There is planting in this area however no public seating.
I can only assume that us as the developer went back with reasons against this during the construction of the development.
Conclusion
In conclusion, unless formally requested and proposed, nearly all items within the original agreement were adhered to.
Carrie Clarke is working towards her Level 4 Housing & Property qualification with Learning Curve Group.
Learning Curve Group work with businesses throughout the UK, supporting impactful training and skills strategies that help you meet core organisational objectives such as performance and output. From short-term vocational qualifications to longer-term apprenticeships, including the best way to utilise the Apprenticeship Levy, we help over 4,500 employers every year with their workplace training plans. With a number of different models, from short to long term, and access to over £20m of adult skills funding, our offer is attractive to a range of sectors.
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