As we have said for some time, there are legal constraints to what is enforceable under section 106. Since the section was rewritten in 1991, a section 106 obligation, to be enforceable, can only do four things: restrict the development or use of land; require specified operations or activities; require use of land in a specified way; require the payment of money on a date(s) or periodically. So where does this leave the common sorts of obligations such as a requirement to submit a travel plan, to comply with the travel plan, to offer season ticket discounts, to offer land to an RSL, or not to object to the revocation of a planning permission?
They do not obviously fall within section 106 and indeed there are cases on land transfer and revocation of planning permissions which confirm that. Of course, with appropriate drafting, these things or something similar can be achieved.
The failure to comply with procedural requirements can also give rise to difficulties. This summer in the High Court, Waltham Forest narrowly avoided being unable to enforce a s.106 agreement which did not properly identify the land. It was only the fact that the landowner had not taken the point earlier which saved the agreement.
Landowners and developers who now want to renegotiate their section 106 agreements might want to look at them carefully to see if they are in fact enforceable. If not, they will have a significant bargaining tool. Planning authorities negotiating section 106 agreements at the moment might also want to check that the drafting is firmly within section 106.
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