Agenda item

Committee considered a detailed report in relation to the above application, presented by the Principal Planner.

The application required a determination by Planning Committee, as it was contrary to policies contained within the Bolsover District Local Plan relating to developer contributions.

The application was to vary planning obligations and the wording of the Affordable Housing clause within a completed Section 106 legal agreement (dated 19th May 2022), attached to planning permission 21/00464/TDC, comprising 58 dwellings.

The application was accompanied by a Viability Assessment undertaken by Aspinall Verdi dated October 2023.  Their Assessment concluded that “the scheme is unable to provide any of the non-housing S106 contributions included within the signed s106 agreement.  The applicant has confirmed that the 6 affordable units will be transferred to the Together Housing Group upon completion but in order to receive the Affordable Housing Grant from Homes England, the units must be outside the S106 agreement. The financial appraisal clearly demonstrated that even with the grant funding the viability of the scheme is challenging.”

The application had since been subject to an independent viability review on behalf of the Council, which recommended that a reduced amount of £485,000 from the original £693,591 (£722,000 with indexation) was the total amount that the applicant could pay to deliver the scheme.  This had been agreed by the applicant and consultees, and had been distributed across the obligations.

The proposed amendments to the Affordable Housing provision (6 units) were to insert a definition of ‘Homes England’, and to define the term ‘Registered Provider’ to allow for ‘Together Housing’ as developer of the affordable housing units, and who were a sub-company of Forge New Homes, or any other registered provider who was registered with Homes England, to enable grant funding to deliver social rented housing on site.

Further information was contained in the Supplementary Update Report in relation to Leisure / Public Open Space considerations.  In the original comments from BDC Leisure (dated 3 May 2024), it was suggested that if a reduced Section 106 contribution was to be negotiated, then the Playing Pitch contribution could be omitted as there were no playing pitches immediately related to the development; but only on the basis that the original Public Open Space (POS) contribution was increased from £50,460 to £55,970.  This figure was agreed taking a logical approach, as it was 50% of the total contribution (for both POS and playing pitches) required in the original Section 106 agreement. 

The Council’s Leisure Officer had suggested the revised POS contribution should be allocated towards development of the new town park as an alternative to the three sites originally stated, as this would be better related to the development due to walking distances.  They also suggested that the POS clause should include the delivery of the town park within 5 years of receipt of payment (depending on the trigger point). 

Following consideration, it was agreed that the town park may not be delivered within 5 years, and that a longer timescale would be likely.  Thus, the Leisure Officer asked if the funds could be allocated to the “town park with caveats that if the town park timescale is not agreed within 3 years, the funds are to be allocated to Horsehead Lane, Laburnum Close and or Hornscroft”

Officers therefore considered that the allocation of funds towards the development of the town park should be prioritised, as this site would be better related to the development than the original sites stated in the Section 106 agreement, the closest of which (Horsehead Lane) was a walking distance of 600m away from the application site (300m as the crow flies).  However, if the timescale for the new town park was not agreed within 3 years of the date of the Deed of Variation, then the funds were to be reallocated to Horsehead Lane, Laburnum Close or Hornscroft, as the three areas of open space closest to the application site.

Members raised various questions to which the Principal Planner replied.  The Chartered Legal Executive advised Members that the applicant’s request was unusual on a site of a small size, however, Legal would be minded to accept the applicant’s offer.

Moved by Councillor Tom Munro and seconded by Councillor Duncan McGregor

RESOLVED that amendment to S106 agreement through Deed of Variation (in addition to the amendments currently proposed);

·        Amend definition of Public Open Space commuted sum – The sum of £55,970 (Fifty thousand four hundred and sixty pounds) to be paid to the Council pursuant to Schedule 2 towards provision and/or improvement of the proposed Bolsover Town Park.  If a timescale for the Town Park is not agreed within 3 years from the date of this Agreement, the funds shall be allocated towards the provision and/or improvement of the existing equipped play areas and amenity green spaces located at Horsehead Lane, Laburnum Close and Hornscroft Park.

·        Amend Section 2.1 - Prior to occupation of the 18^th dwelling on the application land the first instalment in the sum of £27,985.

·        Amend section 2.2 – Prior to the occupation of the 40^th dwelling on the application land the final instalment of £27, 985.

Viability Clawback Review considerations:

The applicant stated in an email dated 17 June 2024 that they endeavour to start on site by the end of June, and that the Deed of Variation isthe final viability issue to resolve.  There is also a pending application for the approval of conditions attached to the Technical Details Application which is currently out for consultation.

However, if Members consider that a clawback clause is necessary, the applicant has submitted a draft viability mechanism on the 14 June 2024, which has been sent to BDC Legal for comment.   To summarise the proposed mechanism:

“If on the fourth anniversary of this Deed less than 90% of the Dwellings are Occupied,

the Owner shall provide written notice to the Council to that effect…and will undertake a Viability Review of the Development…If the outcome of the Viability Review is that the Market Housing Units are achieving a profit greater than 17.5% of Gross Development Value the Owner will pay the Council the balance of any Surplus Profit up to the Commuted Sum Payment Cap…The Council and the Developer will use all reasonable endeavours to agree the Surplus Profit…If no agreement is reached between the Council and the Developer on the Surplus Profit the maker may be referred to an independent arbitrator for determination in accordance with the terms of Clause of the Original Agreement…In the event that it is agreed or determined pursuant to the Viability Review that there is no Surplus Profit, the Owner shall not be required to provide any Commuted Sum arising out of the Viability Review.”