Plan-it Law

Automatic discharge of a s106?

I have recently read an article that states "if the planning obligation has been drafted in accordance with modern drafting practice, the grant of a new planning permission may automatically modify or discharge an earlier planning obligation. "

I assume the modern practice referred to is as in the Law Society's model clause 8.10 which provides that "nothing in this Deed shall prohibit or limit the right to develop any part of the Site in accordance with a planning permission (other than the Planning Permission) granted (whether or not on appeal) after the date of this Deed".

Does that really amount to an automatic modification or discharge if a newer permission is granted? Or is this not the modern drafting practice referred to (in which case, what is?)?

By way of example, what if the earlier s106 related to a permission for a residential scheme and contained an obligation that on commencement of development a library contribution of £x was to be paid and a further library sum of £y was to be paid 5 years after that initial payment. Say that scheme was commenced but not completed and 2 years later a developer got a further permission for commercial development at the same site. On the face of it, the second payment of £y would still be payable when the 5 year trigger was reached, and any new s106 obligations would sit on top of that.

If the article is correct, does that sum of £y never in fact become due because the old s106 is discharged? I assume you would be able to get a formal discharge if the library sum was no longer appropriate but I wouldn’t have thought the wording above amounted to an automatic discharge such that a further deed (or an application after the 'relevant time', which won't help us in the example above) under s106A was not needed.

Has anyone seen that successfully argued?

PINS advice on s106

Good to see that PINS have been giving their Inspectors some advice on the form and content of s106 agreements when dealing with appeals - there's quite a voluminous little tract on the PINS website dealing with everything from legal formalities to affordable housing.

It is the formalities ("is this a s106 obligation?", "have we got all those with an interest in land bound?") that I think Inspectors need to be most aware of - after all, arguing the meat of the obligations themselves will be very much the substance of the debate being played out between the parties. At one inquiry I was working on recently the appellants were refusing point-blank to have their long-leaseholder as a party to the deed. The Inspector in that case did not seem quick to take the point.

Another problem which PINS could have made their Inspectors aware of in this guidance is that if there is a discrepancy on the title which is only brought to light when a 106 is submitted, that might quite possibly show the entire application (and therefore the appeal) to have been a nullity.  If other landowners who are only now being brought on board were not formally notified of the application under Article 6 of the GDPO in the first place the Inspectorate would not have jurisdiction to entertain an appeal.  That's a separate point really but it illustrates the importance of ensuring you are serving notice on the freehold owner of the land and not (for example) a sister company of the owner.

Resurrection of appeal rights - where are we?

The effect of s78 (2) of the 1990 Act has been thought to permit an applicant (at any time) to resurrect rights to appeal a non-determination of a planning application by agreement with the local planning authority.

That can be particularly useful where more than six months has passed since the statutory deadlines of eight or 13 weeks.  Without it, applicants would have no right of appeal and would either have to try to compel a decision by the lpa or submit a new application.

Now, a ruling in the Scottish Inner House of the Court of Session (Vattenfall Wind Power Limited v The Scottish Ministers) suggests that this is not the position and that there is no possibility of resurrecting rights of appeal.

Nor does the fact that this is a Scottish case help us - s47 of the Town and Country Planning (Scotland) Act follows the form of the English legislation.

So - where does that leave us?

The judgment itself is worth a read on the link, below.

http://www.scotcourts.gov.uk/opinions/2009CSIH27.html

Planning and terrorism

There was an interesting news item today saying that the Government has been advised to ensure that security and anti terrorism issues are  taken properly into account in major planning applications. Of course "planning out crime" is not new - but this goes much further and may well lead to additional section 106 costs in terms of security/CCTV. Planners would need to add to their already wide expertise by understanding these issues and how they relate to schemes in their areas - as well as considering any implications for local policies

April's Conundrum - To CIL or not?

Each month in our publication 'Future Perfect?' we set out an interesting conundrum and invite readers' comments on it. This month's, written by Beverley, reads as follows.....

The recent decision of the Secretary of State in relation to Knockhall Road, Greenhithe, Kent (17 March 2009) makes very interesting reading. One of the issues at the inquiry was the council's tariff policy, an adopted policy that sought to impose a flat rate charge on dwellings. The Secretary of State reached a couple of conclusions that seem to be of wide significance to LPAs considering whether to opt for CIL.

Firstly, she agreed with the inspector's concerns around how robust and credible the evidence really was to justify the policy, particularly in light of the shortcomings of the consultation the council had followed. Even though the tariff policy did not qualify as SPD, the inspector applied PPS12 soundness tests in considering it and this approach has been endorsed by the Secretary of State.

The second conclusion relates to Circular 5/05. The Circular allows a pooling approach in terms of contributions to infrastructure, but it should not be assumed that this permits any approach to setting tariffs. Although it is possible for tariff policies to meet the requirements of the Circular, all the tests of that guidance must be met. In this decision, the Secretary of State found that "the proposed tariff is not fairly and reasonably related in scale and kind to the appeal site ... and ... not necessary to make the proposed development acceptable in planning terms".

The second of these conclusions may encourage councils to go down the CIL route, when finally available. The first is likely to generate, in some areas, the need for further testing of emerging and even adopted SPDs: relying on an SPD at inquiry where the policy has not been soundness tested could be risky.

Have readers any news or views on the likelihood of planning authorities using CIL?

Extending Planning Permissions

It seems that the DCLG is looking into how it could extend the time limits on planning permissions - with a view to getting the construction industry moving.

This could involve either reinstating the power to 'renew' permissions, or bringing back the 5 year limit for implementation as opposed to the current 3 years.

I would imagine that either, or both, would be moves welcomed by developers, especially if the provisions were retrospective and applied to extant consents.  As for those of us who are often charged with due diligence exercises and have to sift through files of planning consents to determine which have been implemented, which still could be, which have expired.....we'd better keep a close eye on which regime applies to what!

Consultation is expected in early summer - it'll be interesting to see whether yet more primary legislation is tackled - I don't see an obvious way for this to be dealt with by way of secondary legislation.

Taylor Report responses

The Government's response to the Taylor Report on the rural economy (and the place of affordable housing within it) makes interesting reading - albeit some of it is rather vague and aspirational. 

It has said that it will publish a new PPS to give guidance on increasing affordable housing and business growth in rural areas (probably the most concrete of the proposals).  It wants to explore ways to incentivise landowners to provide land for rural housing "exception" sites - allowing lpas to grant permission for small scale affordable housing development on the basis of local need. 

Finally it will publish proposals for 'community land trusts', shared ownership schemes and the creation of protected areas where shared ownership homes need to be retained for future purchasers.  Many lpas restrict rural 'staircasing out' in local plan policies already - presumably this will try to impose uniformity.

Twin-tracking

By way of reminder, Monday (6th April) heralds the commencement of a local authority's power to decline to determine twin-tracked planning applications.

Having followed the paper trail leading to this power, it seems to me that getting your twin-tracked application validated before Monday is not enough to ensure that it will be dealt with under the 'old' system. From the strict wording of the legislation, a local authority can turn round at any time thereafter and decline to determine the previously accepted application. Surely it would not be a wise move politically to accept an application fee then decide some weeks later not to determine the application.

It would be interesting to hear experiences of this power being used in practice.