#10503 - Planning Obligations, Cil’s And Planning Enforcement - Advanced Property Law

ADVANCED PROPERTY LAW AND PRACTICE WORKSHOP 5 Revision Notes: Planning Obligations, CIL's + Planning Enforcement 2 Analysis! !"Does the [document] say what the clientLevelneeds/wants it to say? If no, what amendments would you recommend?" ! delete/amend existing clauses ! !! * * add new clauses * be able to justify your proceed amendments * react to the other sided amendments --------------------------------------------------------------------------------------------------------------------------- Planning conditions cannot be used to require a developer to make a financial contribution towards infrastructure, so the following can be used as well/instead to achieve this: ! s106 Town and Country Planing Act 1990 planning obligations ! * Community Infrastructure Levy's (CIL) * ! s106 PLANNING OBLIGATIONS !This is a separate agreement, made by deed, that runs alongside the planning permission and deals with issues that cannot be dealt with by planning conditions to help make a development more acceptable and thus rendering permission more likely to be given. ! The NPPF states that planning obligations should only be used where the issues cannot be dealt with by the way of a planning condition. ! Terms of each agreement will depend on the individual needs of the development proposal. ! ! Controversies Planning obligations have proved to be a controversial topic, such issues include: * * * * developers can simply buy permission by offering generous terms in an obligation difficulty in LPA's managing their infrastructure spending strategically difficulty for developers to predict their costs for a development costs can fall disproportionately on developers promoting larger projects ! What is the Meaning of a Planning Obligation? ! Any person interested in land* in the area of an LPA may, by agreement or otherwise*, enter into a planning obligations which may: ! 1. restrict the development or use of the land in a specified way 2. require specified operations or to be carried out on the land 3. require the land to be use in a specified way, or 4. require money to be paid on a specified date, or periodically (s106(1)) ! ! * Important Definitions 'Person interested in land' a person with any legal or equitable interest in the land 'Agreement or otherwise' a planning obligation may be created either by agreement between the LPA and the developer or by mean of a unilateral undertaking offered by the developer, or a combination of both !! Obligations are enforceable against successors in title and they can be made to be: ! indefinite or last for only a specific time * unconditional or subject to conditions ! * When Can a Planning Obligation be Used? Reg 122 CIL Regulations --- a planning obligation can only be a reason to grant permission if they are: ! ! ! ! ! [?] necessary to make the development acceptable in planning terms [?] directly related to the proposed development [?] fairly, precisely and reasonably related in scale and kind to the development [?] enforceable There should be no 'planning gain'. Formalities In order for a planning obligation to be valid they must: made by deed deed must state that it is a planning obligation for the purposes of s106 identifies the land and parties concerned Enforceability (s106(3)+(4)) Planning obligations often bind successors in title and are enforceable against: ! ! ! ! ! ! ! !! ! !! ! the original developer any person deriving title form that developer (not if mortgagor sells to a person when they did not agree to be bound, then the purchaser takes free) cannot bind a superior title (e.g. landlords freehold) parties who have rights in the land but have not agreed to be bound by it (e.g.. mortgagees) For these reasons an LPA will generally insist on all parties with an interest agreeing to enter and be bound by the planning obligation. Enforcement of Planning Obligations by an LPA (a) s106(5) --- injunction to restrain a breach from any restrictive covenant imposed (b) s106(6) --- where there is a failure to carry out operations, an LPA may enter land, carry out operations and recover its expenses from the person against whom the obligation is enforceable (c) s106(12) --- any sums due under the obligations may be charged on the land (not fully enforce yet) Unilateral Undertakings A planning obligation may be offered by a developer unilaterally, in order to make a development more acceptable so as to be granted permission, without the agreement of the LPA This means that if the LPA still does not agree, the developer can appeal the non-granting of the planning permission to the Secretary of State who will then take into account the developers offer in hearing the appeal. Modification & Discharge of a Planning Obligation ! The modification or discharge of a planning obligation can be achieved by agreement or by application to the LPA/Secretary of State: ! ! ! Application to the LPA s106A --- s106BA --- a developer or successor in title can make an application for modification or discharge of an obligation anytime from 5 years after the date the obligation was created a developer can apply for an affordable housing requirement to be modified, or if necessary removed, if the requirement makes the development economically unviable The LPA must then determine the application so it does become economically viable, or if it was viable, for it to stay it its current form ! ! ! ! ! Time Limit for Determination of Modification or Discharge by an LPA ? s106A = 8 weeks or a longer period if agreed in writing by the parties - LPA must give full reasons for refusal and details of right of appeal ? s106BA = 28 days Appeal Against Determination by LPA to the Secretary of State Where an LPA upholds an obligation or fails to determine an application (within the limits above) under s106A or s106BA a developer can appeal to the SOS within 6 months of the date of notice or deemed refusal, or such longer period as the SOS may allow. ! Practical Drafting Points for A Developer ! draft planning permission should be included in one of the schedules ! try to ensure that terms of the obligation do not continue to bind after the developer has ! sold his interest to a successor put a cap on any legal costs the LPA tries to recover ! agreement should be conditional on being granted planning permission ! have a clause inserted to discharge the planning obligation if planning ! permission expires or is revoked have a clause inserted that states if planning permission ceases to have effect so will the ! obligation there should not be a covenant to comply with the conditions attached to the ! related planning permission covenants that impose obligations as soon as the planning obligation is executed ! should be avoided consider restrictions on payment of an obligation due to a CIL charge (see below)