Medway Developer Contributions and Obligations Guide

3 Procedural and Administrative Considerations

3.1 Procedure

3.1.1 Medway Council has put in place systems and arrangements to assist developers, speed the decision-making process and ensure consistency, transparency and accountability. These procedures cover pre-application advice, submission of planning application(s) and post decision issues. Further information is set out at Appendix 1 of this document: Summary Chart and Checklist for Applicants. Comment

3.1.2 Developers should contact the Section 106 (S106) Officer regarding payment of contributions after the agreement is completed. Comment

3.2 Standard Templates and Clauses

3.2.1 To ensure effective use of staff resources in drafting legal agreements, the Council has developed standard templates, based on many years’ experience and established legal practice. For unilateral undertakings, proof of ownership of the land affected by the agreement must be shown. Templates are available on the Medway Council website. Comment

3.2.2 Please search for ‘developer contributions’ for developments of 10 dwellings or more, and ‘bird disturbance in North Kent’ for developments of 1 – 9 dwellings. Comment

3.3 Contacting and Negotiating with the Council

3.3.1 Co-ordination and openness are critical to the successful negotiation and completion of agreements. Developers and their agents should: Comment

3.3.2 Conduct all negotiations through the development management case officer. In pre-application discussions the Council will make every effort to identify a case officer, to ensure continuity and consistency. A pre-application charge will be levied by the council. One to one negotiation with a particular service should only take place with the prior agreement of the case officer. The case officer will usually attend all such meetings. Contact with the Legal Section by the applicant should not be necessary in straightforward cases other than for checking title information, technical legal queries or to arrange the engrossing of an agreement. The case officer is responsible for involving the Legal Section, if necessary, in all other cases. However, in his/her capacity as monitoring officer, the Assistant Director, Legal and Governance, can always require legal involvement where necessary to protect the position of the council. Comment

3.3.3 Traditionally the negotiation and drafting of agreements has started very late in the determination of a planning application. This imposes great pressure to agree heads of terms before Planning Committee meetings and can delay planning permissions not being granted for weeks or months after a positive resolution. With this in mind Medway Council will enter into ‘without prejudice’ negotiations and drafting at as early a stage as possible. These negotiations will consider S106 related matters without prejudice to the consideration of the associated planning application. In this way negotiations can commence at the pre-application stage and the shared aim should be to have a completed agreement ready by the time an application is determined. Comment

3.4 Planning Performance Agreements

3.4.1 The Council promotes the use of Planning Performance Agreements (PPAs) to achieve a more efficient and effective application process. The consideration and resolution of the S106 agreement forms part of the timetabled and resourced actions throughout the key stages from pre-application discussions, processing of the application and issue of decision and clearance of conditions. Comment

3.5 Basis of Guide

3.5.1 The Council’s initial negotiations will generally be based on this guide. Only where there are good and valid reasons for departing from the guide will alternatives be considered. Comment

3.5.2 An example might be where the ‘normal’ level of contribution is genuinely unaffordable in which case the developer should inform the Council as quickly as possible and provide detailed financial evidence to substantiate the claim. Only where comprehensive evidence is provided will it be possible for the Council to consider such departures and in these cases an ‘open book’ approach will be required. Comment

3.5.3 Each new dwelling within a defined 6km buffer of the Thames, Medway and Swale Special Protection Areas and Ramsar sites (please see Appendix 2 for map showing buffers) will incur a bird disturbance mitigation contribution of £337.49 per dwelling for a Strategic Access Management and Monitoring Scheme. Contributions for services to mitigate the impact of the development will be sought on developments of 10 dwellings or more. Comment

3.5.4 All S106 contributions will be index linked annually on 1 April (using all items retail prices index (RPI), and will be calculated at 2.43 persons per dwelling. Therefore, it should be understood that the sums set out in this document are subject to annual review in line with the RPI as set out above. Comment

3.6 Resolving Disputes

3.6.1 Complaints relating to procedural and administrative matters will be dealt with in accordance with the Council’s normal complaints procedure as set out on our website. Any concerns over negotiations should be made initially to the case officer, and if this does not resolve the problem, to the Chief Planning Officer. If necessary, the matter will then be referred to the Assistant Director, Culture and Community, and if necessary to the Director of Place. Comment

3.7 Administrative and Associated Costs

3.7.1 The Council is committed to providing sufficient resources to achieve a high level of service and has set administrative costs, to be paid on completion of the agreement, on all agreements as follows: Comment

• £584 per trigger event as set out in the S106 agreement (this will increase annually from 1 April 2026)
• The Council’s reasonable legal costs, at a minimum of £500 per agreement

3.7.2 In some cases, the cost of the case officer’s time negotiating the S106 matters. Comment

3.8 Thresholds

Table 1: Thresholds Comment

3.8.1 The requirements relating to the provision for Affordable Housing vary, and developers should refer to the details set out in the Affordable Housing section of this guide. Comment

3.8.2 The tariff relating to Strategic Access Management and Monitoring scheme to address the risk of bird disturbance in the designated estuarine habitats applies to all dwellings within a 6km buffer of the designated areas. Comment

3.8.3 For developers promoting schemes involving self-build housing developments, designated starter home exception sites, or the redevelopment of a vacant building, there are additional considerations. In such cases, prospective developers should contact the Planning Service for further details of the contributions and obligations required. Comment

View Planning Practice Guidance on GOV.UK. Comment

3.9 Reporting on contributions and obligations

3.9.1 The Council is committed to providing clear information on developer contributions and obligations. S106 agreements are published with the planning application on the council’s website through Public Access. The Planning Service reports to Planning Committee on developer contributions. These reports list information on S106 contributions received, and obligations included in all S106 agreements completed including information on expenditure. The Council also reports on developer contributions in its Infrastructure Funding Statement published annually in December detailing all S106 receipts and expenditure for the previous financial year on the council’s website through Public Access. Comment

3.9.2 The Planning Service reports to Planning Committee on developer contributions. These reports list information on S106 contributions received, and obligations included in all S106 agreements completed and from April 2023 will also include information on expenditure. The Council also reports on developer contributions in its annual Authority Monitoring Report, which is published each December for the preceding financial year. In addition to this, the Infrastructure Funding Statement is published annually in December detailing all S106 receipts and expenditure for the previous financial year. Comment