Following David's recent post pointing out that a number of section 106 provisions may not actually be enforceable, I came across a prime example the other day. I won't name the local planning authority but I did see in their model planning agreement wording which comprises a positive obligation to provide security (bond/guarantee etc) for payment obligations. Whereas the payment obligations themselves should fall squarely within section 106, I cannot see how that can apply to the obligation to provide security. Where there are substantial sums involved (for which security is required) then the lack of enforceability is a major risk for the planning authority - and also may give rise to a successful challenge to the planning permission.
It is a pity nothing has been done to extend the scope of section 106 - but with CIL on the near horizon, extension of 106 seems unlikely.
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