20. The planning process in England works within a strong national statutory legal, policy, guidance and procedural framework that sets both the parameters within which Local Planning Authorities (LPAs) must comply and have regard to and also the discretion available to LPAs in respect of their consideration of planning applications and making of planning decisions.
21. Good practice would include the MOD and bidders having discussions with the LPA on planning matters. These should take place from the earliest practical scheme development stage, Expression of Interest, and with bidders from the earliest appropriate stage following OJEU (which may be at Invitation to Submit Outline Solutions (ISOS) or Invitation to Submit Detailed Solutions (ISDS)), continuing up to Call for Final Tender. Such discussions by acquisition teams (either supported by or led by Defence Estates) are extended versions of Pre-Application Discussions that are offered by all LPAs to all applicants for planning permission and as such are good practice and legally acceptable. Such direct contact can help ensure effective communications and common understanding between the LPA, the MOD and bidders of LPA guidance and requirements. It is also considered appropriate and good practice for LPAs to corporately work with and advise acquisition teams on planning matters including assessing and providing views on bids from an early stage.
22. However LPA planning officers should not be involved in actual decision-making on bids and from Call for Final Tenders should formally separate themselves from bid assessment including selection of the Preferred Bidder. At this stage, the acquisition team and bidders should be confident that the final bids, which are based on the final solutions, will be acceptable to the LPA including in respect of expected Section 1063 and/or Section 2784 requirements.
23. Providing that such a proactive and reasonable approach is taken by the acquisition team, it is considered that any reasonable LPA imposed changes and variations to the tender would not be considered to be likely to distort competition or have discriminatory effect. This position is subject to the provision that the acquisition team and preferred bidder could not have better managed things to avoid this situation and that the changes could not have reasonably been anticipated or predicted.
24. Any change of requirement or circumstance that was reasonably predictable, or directly under the acquisition team's control, arising from an LPA decision is unlikely to be a satisfactory reason though, from a legal perspective, to change a bid during the post dialogue phase. In these instances, significant or material change that lead to changes in the basic features of the final tender or substantial changes (technical or price) would potentially call into question the need for a fresh procurement process and legal advice should be obtained from Central Legal Services (CLS) where this situation arises.
25. Any later specification or fine-tuning of final tenders required by the MOD would also have to be within the boundaries set out in the relevant bidder's final tender. It is inappropriate for a acquisition team to undertake any changes to bids received after the closure of dialogue, if these changes could have been anticipated and dealt with during the dialogue stage. Issues should be resolved as early as possible in the process and should only be left to Preferred Bidder stage where resolution at an earlier stage cannot be achieved.
26. Bidders also cannot re-open discussions with the acquisition team at this stage and non-compliant bids will not be acceptable. It is important for the acquisition team to ensure that all parties are aware of these restrictions and the practical implications that arise from them.
27. The acquisition team and bidders should therefore ensure at Call for Final Tenders, as far as is reasonably possible, that the likely form of final solutions which bidders have indicated during the dialogue phase they will provide are likely to meet planning requirements, including expected Section 106 and/or Section 278 requirements, whilst also being financially robust and affordable.
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3 Planning obligations (or 'Section 106 agreements') in England under section 106 of the Town and Country Planning Act 1990 as substituted by the Planning and Compensation Act 1991, are private agreements negotiated, usually in the context of planning applications, between local planning authorities and persons with an interest in a piece of land, and intended to make acceptable development which would otherwise be unacceptable in planning terms. Obligations can also be secured through unilateral undertakings by developers. Section 106 provides that anyone with an interest in land may enter into a planning obligation enforceable by the Local Planning Authority identified in the instrument creating the obligation. Such an obligation may be created by agreement or by the person with the interest making an undertaking. The use of the term "planning obligation" reflects the fact that obligations may be created other than by agreement between the parties (that is, by the developer making an undertaking). Such obligations may restrict development or use of the land; require operations or activities to be carried out in, on, under or over the land; require the land to be used in any specified way; or require payments to be made to the authority either in a single sum or periodically. The obligations created run with the land so they may be enforced against both the original covenantor and against anyone acquiring an interest in the land from him/her unless the agreement makes specific to the contrary. The obligations can be positive (requiring the covenantor or his/her successors in title to do a specified thing in, on, under or over the land) or negative (restricting the covenantor or his/her successors from developing or using the land in a specified way).
4 A Section 278 Agreement (under Section 278 Highways Act 1980) allow developers to enter into a legal agreement with a County Council to make alterations or improvements to the public highway. Examples of work covered by this type of agreement would include new access into a development site i.e. a roundabout, signalised junction, right turn lane or a simple priority junction. A Section 278 Agreement may also be required for works such as a new signalised pedestrian crossing or improvements to existing junctions close to the development site. Where highway schemes require developers to offer up land within their control for adoption as public highway the agreement would be combined with an agreement under Section 38 of the Highways Act 1980. The agreement process allows the County Council to review the detailed design of developer promoted schemes to ensure that the design and construction of highway schemes and new infrastructure complies with appropriate standards. The developer is responsible for meeting all costs associated with the design and implementation of Section 278 schemes. In addition the developer must pay a fee to cover the County Council's administration and inspection costs. Where a developer constructs infrastructure that requires additional maintenance the agreement process enables a commuted sum to be secured to fund the future maintenance. The Section 278 Agreement often requires the developer to deposit a bond with the County Council to cover the total cost of the highways works. The bond is released incrementally with 50% released on completion of the works and the remainder released after the completion of a satisfactory 12 month maintenance period. If a developer fails to perform or observe any of the conditions of the agreement we can call in the bond to complete the works.