Securing travel plan measures in a section 106
A travel plan secured by condition gets filed. One secured by obligation gets monitored. This covers the drafting that makes the difference.
A travel plan secured by condition gets written, approved and filed. A travel plan section 106 obligation gets monitored, and the difference shows up five years after occupation when someone asks whether the car club bay was ever installed. If the measures matter to the highway case, they belong in the agreement.
The drafting problem is specific. An obligation has to be capable of enforcement against a landowner who may not be the applicant, at a point in time that can be identified without argument, for a thing that can be described precisely enough for a court to order it.
Why measures need securing rather than promising
Planning obligations under section 106 of the Town and Country Planning Act 1990 bind the land and are enforceable by injunction. Conditions bind the permission and are enforced by notice. Both work, and they work on different things.
A condition can require a travel plan to be submitted and approved before occupation, and it can require the approved plan to be implemented. What a condition cannot readily do is require a payment, secure a monitoring regime with consequences, or oblige a future owner to fund remedial measures if targets are missed. Those are the parts that make a travel plan real.
So the usual split is a condition for the plan document and an agreement for the money, the monitoring and the remedies. On a scheme where a Transport Assessment has relied on modal shift to make the junction capacity work, the agreement is carrying the highway case, and it should be drafted accordingly.
Drafting the obligation so it is enforceable
Four elements make an obligation enforceable in practice.
- A defined document. Either the travel plan is appended to the agreement in an agreed form, or the agreement defines the process by which it becomes the approved plan, with a longstop if approval is not forthcoming.
- A named actor. A travel plan coordinator, appointed by a stated date, with the obligation to maintain the appointment for the monitoring period rather than merely to make it once.
- A measurable output. Mode share targets expressed against a baseline, with the baseline survey method specified, not left to be agreed.
- A defined period. Five years from first occupation is the common monitoring term, longer on larger schemes, and the agreement should say when the obligations fall away.
Where the agreement says measures will be delivered "to the satisfaction of the council", add the mechanism for resolving the point when the council is not satisfied. Otherwise you have created a discretion with no exit.
Vouchers, memberships and the delivery problem
Bus season tickets, car club memberships, cycle vouchers and cycle training are the standard measures and each has a delivery wrinkle.
A voucher scheme needs someone to hold the money and someone to distribute it. Drafting that leaves distribution to the developer produces low take-up. Drafting that hands a sum to the council produces a monitoring dispute about what happened to it. The workable version defines a per-dwelling or per-employee entitlement, a claim window measured from occupation of each unit, a distribution route, and a default that unclaimed value is either retained or applied to another measure in the plan.
Car club provision is harder, because it depends on an operator willing to run a bay. Do not oblige the developer to provide a service that a third party controls. Oblige the developer to provide the bay, the electrical supply and a stated sum towards operating costs, with a fallback if no operator can be procured within a defined period.
For workplace measures the same logic applies: secure the infrastructure absolutely and the behavioural measures with a defined level of effort and spend.
Trigger points tied to occupation
Triggers should be objective, observable and early enough to matter.
Occupation triggers work well for residential: the coordinator appointed before first occupation, welcome packs issued on completion of each sale or letting, baseline survey within a stated number of months of a stated occupancy level. Avoid triggers keyed to "substantial completion" or "practical completion of the development" on a phased scheme, because both invite argument about which phase.
For commercial schemes, occupation of a defined floorspace threshold is cleaner than occupation of a building, since a single building may let in parts.
Infrastructure triggers should precede the behaviour they support. A cycle link delivered after the residents have bought second cars has missed the point of the plan.
Monitoring fees and the review mechanism
Monitoring fees for planning obligations are expressly permitted, following the 2019 amendment to the Community Infrastructure Levy Regulations 2010, provided the sum is proportionate to the actual cost of monitoring the obligations over their lifetime.
Two practical points. The fee should be itemised against the obligations it monitors rather than presented as a round sum, and it should be capped where the authority publishes a monitoring charge schedule. Where no schedule exists, ask for the calculation. Authorities are required to report what they collect and spend, and the calculation is a reasonable thing to see.
The review mechanism is the part most often drafted loosely. Set out who carries out the survey, to what method, when the results are submitted, what happens if a target is missed, and what the remedial measures fund may be spent on. A review that produces a report and no consequence is a reporting obligation wearing a review's clothes. The mechanics of this sit alongside how you write a travel plan a council will monitor in the first place.
Default provisions and remedies
A remedial measures fund, drawn down when targets are missed, is the standard remedy. It works where the sum is meaningful against the scheme and where the measures it may fund are listed. It fails where the fund is small, the list is open-ended, or the trigger for drawdown is a matter of council opinion.
An alternative on larger schemes is a stepped obligation: a modest sum on the first missed target, a larger sum on the second, with the obligation discharged once targets are met in two consecutive surveys. That gives the developer a reason to intervene between surveys rather than at the end.
Interest on late payment, indexation of sums to a stated index from a stated base date, and a mortgagee exclusion clause are standard and should be in the draft from the outset rather than negotiated in the final week.
Measures that fail the obligation tests
Regulation 122 of the Community Infrastructure Levy Regulations 2010 requires an obligation to be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to it. All three limbs, every time.
The measures that fail are recognisable. A contribution to a transport scheme elsewhere in the district with no functional link to the site. A sum described as a sustainable transport contribution with no defined purpose, which fails the first and second limbs together. A monitoring fee set at a level unrelated to the work involved. A requirement to fund a bus service in perpetuity, which fails on scale.
The safest structure is a short schedule where each obligation is followed by a sentence explaining which planning harm it addresses and how the sum was calculated. If that sentence cannot be written, the obligation will not survive scrutiny at appeal, where an inspector will test each item against the three limbs and strike out the ones that do not pass.
Physical highway works are a separate matter entirely and belong in a highways agreement rather than a section 106, as set out in the note on section 278 agreements, scope, cost and timing.
A Travel Plan drafted with the obligation schedule open beside it will be shorter, more specific and easier to monitor than one written in isolation.
Enter your postcode on PlanScope to see which transport documents a scheme is likely to need. This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.
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Frequently asked questions
Can a travel plan be secured by condition instead of a section 106?
Partly. A condition can require the plan to be submitted, approved and implemented. It cannot readily secure payments, a monitoring regime with consequences, or an obligation on a future owner to fund remedial measures. The usual split is a condition for the document and an agreement for the money, monitoring and remedies.
Are monitoring fees lawful in a section 106 agreement?
Yes. An amendment to the Community Infrastructure Levy Regulations 2010 made in 2019 expressly permits monitoring fees, provided the sum is proportionate to the cost of monitoring the obligations over their lifetime. Ask for the calculation where the authority has no published schedule, and check the fee is itemised against the obligations it covers.
What should the monitoring period be?
Five years from first occupation is the common term for a residential scheme, with longer periods on large or phased developments. The agreement should state when the obligations fall away, since an open-ended monitoring obligation is disproportionate and will be resisted, and a term that never ends complicates future sales of the land.
Why do voucher schemes so often fail?
Because the drafting leaves distribution undefined. Specify the entitlement per dwelling or per employee, the claim window measured from occupation, who distributes the vouchers and what happens to unclaimed value. Without those four points, take-up is low and the monitoring report becomes an argument about whether the obligation was performed at all.
How do I know if an obligation will fail the tests?
Write one sentence saying which planning harm the obligation addresses and how the sum was calculated. If you cannot write it, the obligation probably fails regulation 122, which requires every obligation to be necessary, directly related to the development, and fairly and reasonably related in scale and kind.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.