LATEST NEWS
S106 OBLIGATIONS BRIEFING NOTE
It is becoming increasingly common for local planning authorities to attach conditions in the Grampian negative form requiring the applicant to put in place arrangements to secure planning obligations as a condition precedent on the implementation of the permission. This seems to overcome the problem of paragraph 13 of Circular 11/95 which prohibits conditions requiring applicants to enter into S106 Agreements. By wording the condition negatively it does not require the applicant to enter into a S106; it simply precludes the development commencing until the condition precedent is satisfied. The motivation for this seems to be the pressure on local planning authorities to make decisions within the 8 and 13 week periods to secure their planning delivery grant funding. The ODPM has also commenced the practice, for example, in a case in London Borough of Hackney where he imposed a condition to secure an education contribution (ref. APP/U5360/A/03/1130161).
Irrespective of the motivation for this, it is very good news for developers for the following reasons:
So long as it is clear what the obligation(s) entails, it enables the permission to be issued months, possibly years earlier than if a legal agreement has to be completed in advance of issue. This has clear advantages to the developer in achieving certainty, allows the period for JR to commence earlier, thus also saving time.
It enables the condition to be appealed immediately rather than wait five years to challenge a S106 on restricted legal grounds.
Precludes the local planning authority changing its mind between the resolution of Committee to grant and issuing the decision which, in some cases, can be years.
Enables a developer to obtain planning permission on land he does not own (e.g. optioned land) and then acquire the land with the certainty of planning permission in place, thus, for example, preventing the option expiring.
Enables development to be phased with several S106 Agreements relating to parcels of larger sites as development proceeds assisting cash flow.
To some extent redresses the imbalance in negotiating strength in favour of the developer, for example the obligations can be submitted as details pursuant avoiding protracted negotiation with the Council’s legal department.
At appeal, enables planning obligation to be dealt with by condition/Statement of Common Ground rather than UPO.
None of this, of course, avoids the necessity to comply with the advice of Circular 11/95 and 5/2005 relating to the tests for conditions and obligations.
The time savings and negotiating strength this procedure can deliver are very significant and developers should be able to take advantage of it where appropriate.
Finally a word of warning; the procedure has not yet been tested in the Courts but why not make hay while the sun shines.