6. Our procedural requirements
Our solicitor will need the following before they can begin preparation of a draft agreement:
- draft heads of terms (for more details see "what planning obligations mean for applicants"). Heads of terms should be supplied in electronic form for ease of circulation between officers of the city and county councils and the solicitor.
- a certificate of title [35kb] is available to download. This is because everyone with an interest in the application site will need to enter into the agreement. If any other land needs to be bound by the section 106 agreement (for example where works are to take place on adjoining land, or the use of adjoining land is to be restricted by the agreement), a certificate of title will be required in respect of that land as well
- details, including an email address, of the person who will negotiate the agreement on your behalf (usually your solicitor)
- an undertaking to meet our reasonable legal costs in connection with preparation of the agreement, whether or not the agreement is completed. Please note:
- your solicitor will probably require you to deposit a sum with them in advance so that they can give this undertaking. Our solicitor will be able to provide an estimate of costs once the heads of terms have been broadly ascertained
- if planning permission is refused, you will still have to pay for the legal work done by us (and probably that done by your own solicitor). However, this work may still be of use to you. For example, you may decide to submit a revised planning application, which is subsequently approved subject to a planning obligation. Alternatively, if you appeal against the refusal, we will encourage you to complete the section 106 agreement in a form which is conditional upon the appeal being allowed. This is without prejudice to the our position in respect of those refusal reasons which are unrelated to the contents of the section 106 agreement
- if Devon County Council is a party to the agreement (for example because it involves highway works or an education contribution), you will need to pay its costs in addition, although the county council does not normally insist on a solicitor's undertaking
Once all of the above have been provided, our solicitor will prepare a draft agreement. It is not necessary for your own solicitor to prepare a draft, but applicants who instruct their solicitor to do so are strongly encouraged to use our standard templates and clauses. Variations from those clauses should be shown by tracked changes. Production of a draft in a different form is likely to result in additional cost, to be borne by you.
Negotiation of the section 106 agreement is without prejudice to the eventual determination of the application by us - in other words, it does not indicate that we are minded to grant the application.