Section 106 and Section 75: how planning obligations pay for public art
Section 106 of the Town and Country Planning Act 1990 is the legal agreement through which most public art in England and Wales is funded, and its Scottish counterpart is Section 75 of the Town and Country Planning (Scotland) Act 1997. Both create a planning obligation: a binding commitment attached to a planning permission, requiring a developer either to deliver something, such as an artwork on the site, or to pay the planning authority a sum so that it can be delivered. The planning system, rather than arts funding, is the usual route by which a permanent public artwork in the UK gets paid for; arts council money attaches more often to temporary and participatory work.
One thing matters more than the rest: the wording of the obligation is the specification. It defines what the money can be spent on, where, by when, and what happens if it is not. Read it before writing the brief.
What a planning obligation is, and how it binds
A planning obligation binds the land, not the company. Registered against the site, it runs with the land, so a purchaser who buys the development inherits the commitment. That is why it survives a developer going into administration or selling on, and why it beats a letter of intent.
Obligations arise in two forms. The usual form is an agreement between the developer, the landowner, any mortgagee and the planning authority, negotiated alongside the application. The alternative is a unilateral undertaking, given by the developer alone, most often where an appeal is running and the authority will not sign. Both are enforceable, and both are usually drafted so that public art money is triggered by a defined event rather than paid up front.
Four elements appear in nearly every public art clause: the sum or the deliverable, the trigger for payment, the geographic and purpose restriction on spending, and the deadline after which unspent money is repayable to the developer with interest. That last element catches authorities out. Contributions returned unspent recur in local authority monitoring reports, and the usual cause is a small sum arriving in a service with no officer time to commission anything.
The three tests an obligation has to meet
An obligation is only lawful as a reason for granting permission if it meets three tests, set out in the Community Infrastructure Levy Regulations 2010 and repeated in national planning policy. The obligation must be:
- Necessary to make the development acceptable in planning terms.
- Directly related to the development.
- Fairly and reasonably related in scale and kind to the development.
Public art has to be argued against all three, and the first is hardest. A contribution justified only by a general aspiration to improve the area will struggle: it is not necessary to make that particular development acceptable. One justified by the scheme’s own impact, such as a large building creating a blank frontage or a new public space the development itself brings into being, is far more defensible. Authorities with a plan-adopted policy, an evidence base and published guidance secure contributions consistently; those relying on custom and practice do not.
Section 106 and Section 75 compared
The two regimes do the same job through different legislation, and the differences matter mainly at the margins.
| Feature | England and Wales | Scotland |
|---|---|---|
| Statute | Section 106, Town and Country Planning Act 1990 | Section 75, Town and Country Planning (Scotland) Act 1997 |
| Name in common use | Section 106 agreement, or s106 | Section 75 agreement, or a planning agreement |
| Binds successors in title | Yes, registered as a local land charge | Yes, once the instrument is recorded in the Register of Sasines or registered in the Land Register |
| Unilateral form available | Yes, a unilateral undertaking | Yes, introduced by later planning reform |
| Policy tests applied | The three statutory tests, plus national policy | Equivalent tests in Scottish Government guidance |
| Levy alternative | Community Infrastructure Levy, where a charging schedule is adopted | No equivalent levy in operation |
| Modification and discharge | Application to the authority, with an appeal route | Application to the authority, with an appeal to Scottish Ministers |
For a commissioner the operational differences are small. For a developer working across the border they are not: the Scottish route has no levy alongside it, so negotiation concentrates entirely in the agreement.
The Community Infrastructure Levy, and why it rarely buys art
The Community Infrastructure Levy is a separate charge, adopted at the discretion of a charging authority in England and Wales, levied per square metre of new floorspace at published rates. Unlike a planning obligation it is non-negotiable, and it does not operate in Scotland.
Two features keep it from funding much public art. The levy is collected for infrastructure and spent against the authority’s infrastructure priorities, which are dominated by transport, education, health and open space. And where a levy is in place the authority must avoid charging twice for the same item, so a scheme paying the levy may face a smaller obligation. A proportion of levy income is passed to the parish or community level, and small public realm and art projects are occasionally funded from that, the one route by which the levy reaches this work.
In-kind delivery or a commuted sum
An obligation delivers public art in one of two ways, and the choice determines who runs the commission.
- In-kind delivery puts the developer in charge. They appoint the artist, hold the contract and install the work, usually under an approved public art plan discharged before occupation. It keeps the artwork integrated with the build programme and avoids money sitting in an account, and it means the developer’s procurement, timescale and taste drive the outcome.
- A commuted sum puts the authority in charge. The developer pays, and the authority commissions. It allows contributions from several schemes to be combined and a proper open selection to be run, and introduces the delay, the officer capacity problem and the expiry risk described above.
Where a sum is paid, ask two questions before accepting it. Is the money restricted to the development site, or to a wider defined area? And does the sum include a management fee covering the officer or consultant time to run the commission? A contribution with no delivery cost inside it frequently goes unspent for that reason.
Can an obligation be removed or renegotiated
Yes, an obligation can be modified or discharged, by two routes. The first is agreement: developer and authority can vary an obligation by deed at any time, which happens regularly when a scheme is redesigned, resold or stalls on viability. The second is the statutory route, under which an application to modify or discharge can be made once the obligation has been in place for the relevant period, five years by default, with a right of appeal if refused.
Public art contributions are among the most frequently renegotiated items, because they are small, politically discretionary, and easy to trade for something the authority needs more. Treat a commission funded by a planning obligation as contingent until the money reaches the commissioner, and never begin fabrication against a promised contribution. Get the payment trigger, the spending deadline and the management fee right at drafting stage: those three lines decide whether the artwork is ever made.