Planning Obligations Notes

PLANNING OBLIGATIONS (S106) AND ENFORCEMENT Likely to Ask: Amendments to S106 and which Enforcement Notices to serve See Checklists below! Planning obligations Practical points: LPA's Consideration s: * Title thoroughly investigated o All parties with legal interest must be made party to agreementotherwise obligation may not be enforceable against successors in title. LPA's future statutory powers should not be fettered Planning obligation executed either before or simultaneously with planning permission (so developer doesn't get benefit of planning permission without being bound by obligation) Preferable to have all agreements related to the development executed at the same time as planning obligation o i.e. agreements under the Highways Act 1980 etc. Consider liability, whether it should continue against successors in title or not If disagreement regarding a term of the obligation consider Circular 5/05 Costs: put in a clause for LPA's expenses otherwise will have to bear own Include draft planning permission as a schedule so that it is clear what conditions are attached to the permission Ensure successor is not bound if interest sold (particularly important for positive covenants that will continue well into the future) Don't want the LPA's powers fettered so that 3rd party doesn't challenge obligation Clause should be inserted that obligation discharged/ceases should planning permission expire or be revoked Ensure there is no covenant to comply with related planning permission (Circ.5/05 Para.B51) - in case permission is varied (under s.73) Avoid covenants that impose obligations which take effect as soon as obligation is executed - may be a gap between obtaining permission and being able to implement it * * * Developer's Considerations: * * * * * * * * * AMENDMENTS TO S. 106 AGREEMENTS Is it a deed? Correct parties What SHOULD be included * * * * * * * * * * What SHOULD NOT be included * * * * Expressly states deed! Executed as a deed (correct attestation clause) LPA Highways Agency Owner Developer (not required if have not bought the land yet BUT prudent so cannot deny knowledge of agreement) Conditional on gaining/implementing Planning Permission Developer NOT bound if interest sold (e.g. through non-retention of liability clause) Developer NOT bound if Planning Permission expires/revoked (e.g. through revocation clause) Make sure it is the OWNER who covenants with Council and NOT Developer Contributions unrelated to planning e.g. education contribution for retail development - planning gain! Contributions must be specific enough to ensure they are relevant - must have a functional and geographical link to the development No covenants to perform conditions subject to Planning Permission No fettering of LPA's future stat. powers - even if in developer's favour as 1 WHOLE agreement could be set aside on Judicial Review What can be included in a S106? * "Planning Gain" LPA uses s106 to put in obligations to do something that cannot be included as conditions BUT detailed policy and case law to prevent developers 'buying' and LPAs drawing up 'shopping lists'. OK if related to the development, i.e. new playground for housing development NOT OK if something that isn't related i.e. build a new school if building a factory or attempting to resolve existing deficiencies in infrastructure. Can't hold planning permission to ransom!! * * * * DCLG AdviceCircular 5/05 Planning obligations OK if: a) Necessary to make a proposal acceptable in planning terms b) Relevant to planning i.e. in line with the objectives of sustainable development c) Directly related to the proposed development - functional or geographical link d) Fairly and reasonably related in scale and kind to the proposed development e) Reasonable in all other respects Planning Enforcement Notices Has there been a breach of planning control and, if so, what Enforcement is likely to be used by the LPA? How to Approach Question: 1. 2. 3. The lawful use of the property? The current use of the property? Has there been a breach of planning control, what type? 4. Is council within relevant time period for enforcement action? 5. Lawful use of Property * * Current Use * * Breach of Planning Control? * * * What type of enforcement action would be most appropriate? What is the lawful use, what does Planning Permission allow this to be used for? What class is this use: o See USE CLASSES. What is the current use? What class is this use: o See USE CLASSES Has there been 'development' - if so requires planning permission - s.57(1) TCPA'90 'Development' - s.55 = 'operational development' or 'material change in use' Is it permitted development? o Resumption of previous use- s57(2)-(6) o GPDO 1995 general permitted development order1. Development within dwelling house 2. Minor operations- e.g. Fence, painting exterior 3. Change of use within certain classes 4. Temporary buildings and Use 2 Within Relevant Time Period for Enforcement ActionWhat Type of Enforcement Action is Appropriate? * * * * * * * * 5. Agriculture buildings and operations 6. Demolition of buildings Operational Development (BEMO) without Planning Permission or Change of use to single dwelling house LPA enforcement action = 4 years from date change of use occurs or operation substantially completed. All other breaches 10 years from date of breach Before any formal enforcement methods are used: ? Site visit (get right of entry from LPA if required) ? Check what they are doing o Is neighbour telling truth? o Ensure application hasn't been approved for what they are doing. o May only be surveying, measuring etc o What planning has been issued. Planning Condition Notice (PCN) - where further information is required which is not available from inspection/alternative to carrying out inspection o E.g. - breach has been reported by member of public, send PCN to investigate Breach of Condition Notice (BCN) - Where breach of an existing planning permission exists and LPA desires to secure compliance with conditions/limitation attached. Enforcement Notice - LPA should consider its development plan and other material considerations before serving. Stop Notice - Where urgent compliance required (remember compensation may be payable) Injunctions 3 Planning Obligations Planning Obligations * * * * * Negotiating tool available to LPA and developer Offers a degree of flexibility to parties that may otherwise not be available. Used to put in controls that are outside the area of land for which planning is sought o i.e. upgrading services in village to cope with new development, upgrading the roads to deal with new traffic Planning permission only deals with the 'parcel of land' and therefore need s.106 agreement to add other conditions/agreements in relation to things outside of the land Negotiated at the same time as the planning agreement. The planning obligation will be treated as a material consideration in determining whether the planning permission should be granted and on what terms. The Basic Provision s.106 * * When can a planning obligation be used Meaning of Planning Obligation: Any 'person with an interest' in the land (not option to purchase) made either by agreement or unilaterally by developer, can enter a planning obligation which may: o Restrict development or use of land- both positive and restrictive covenants- enforceable against successors in title of developer. o Require specified operations or activities to be carried out in, on, over or under the land o Require land to be used in a specified way o Require money to be paid to LPA on date(s)/periodically - s106(1) 'Person interested in land' means any person with a legal or equitable interest in the land. A planning obligation may only constitute a reason to grant planning permission if it is: (a) Necessary to make the development acceptable in planning terms (b) Directly related to the proposed development (c) Fairly and reasonably related in scale and kind to the proposed development Planning obligations that do not meet these criteria cannot be reasons to grant planning permission but will still be lawful if agreed by the developer. Formalities (of * Planning Obligations) * * * * * Enforcement by LPA * Must be by deed Must state it's a planning application for the purposes of s106. Identifies the land Identifies the parties (including the interests of the developer) Registrable by the LPA as a local land charge Can be offered unilaterally (see later) Enforceable by LPA against the original person interested (the developer) 4 

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