An interesting case is reported today - Waltham Forest v. Oakmesh - on enforcing planning obligations. When lawyers say something is interesting you know it means it's a bit unexpected. Oakmesh entered into a s.106 agreement and then sold the land to a housing association - Family. The s.106 required a bridge to be built, amongst other things. Section 106 specifies a number of formalities for a valid agreement, one of which is that it identifies the land of the person entering into it. The agreement didn't identify the land on which the bridge was to be built, though it did identify other land on which the development was to be carried out.
Oakmesh went into liquidation after having sold to Family who, when enforced against, took a number of steps. First and very sensibly they tried to vary the s.106 agreement under s.106A. That (and an appeal under s.106B) failed. So when the planning authority sought an injunction to enforce they argued that s.106's formalities hadn't been complied and that the obligation was therefore unenforceable. Unfortunately they had not taken this point in the s.106A/106B process nor in any of the discussions around enforcement.
The judge decided this prevented them taking the point in the injunction proceedings. First, it would be an abuse of process to raise it in the injunction proceedings when it hadn't been raised earlier. Second, Family was estopped by its representations and conduct to the detriment of the planning authority from amending its pleadings to raise the point.
The abuse of process point doesn't seem right to me. Applications and appeals under s.106A/106B are about whether the obligation serves a useful purpose, not whether it's a valid obligation. The point could not have been raised there and even if ithad it wouldn't have made any difference to the appeal.
The second point looks a bit odd as well. If Family sold the site to a third party, they would not have made the representations. Would they be estopped?
Anyway, I think that the moral is, raise all your points at the very beginning. Which probably means coming to a good planning lawyer.
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