The Court of Appeal issued its decision in Savage v. Mansfield EWCA Civ 4 on 15th January. The case is interesting for those involved in section 106 agreements for two reasons, both dealt with in a few admirably pithy paragraphs at the end of the judgment of Lord Justice Lewison.
The first is that the agreement contained a covenant by the landowner not to claim compensation if the permission was revoked. That provision was redrafted before the decision to say that the landowner would repay any compensation. That is because, though the judge refrained from pointing this out, the way it was originally put was simply not within s.106. The second formula is within s.106(1)(d) – a payment to the planning authority. There is earlier authority on just this point – R v. Somerset County Council, ex p Dixon  JPL 1030.
The second point concerns Reg 122 of the Community Infrastructure Regulations 2010 which enshrines the policy tests for s.106 agreements in law and says that a planning obligation which fails to meet the tests of necessity, direct relation to the development and reasonableness, may not be taken into account as a reason to grant permission. The provision was addressing the possibility that the permission which might have to be revoked under the Habitats Regulations, in which case in the normal run of affairs the planning authority would have to pay compensation. Lewison LJ held that because revocation could only occur to the extent the development was not built the obligation could not have been a factor which was taken into account in deciding to grant permission. It did not overcome a planning objection, and therefore Reg 122 was not engaged. Now this strikes me as odd, because the argument against the clause was precisely that – it did not overcome a legitimate planning objection, and was not necessary to do so.
Lewison LJ went on to point out that in the reasons for the grant of permission the clause was not mentioned, which sounds like pretty good evidence that it was not taken into account in the decision to grant. I am no fan of Reg 122, and it is spawning much litigation on an area which was previously quiet, but does not the other reasoning in this decision and Derwent Holdings v. Trafford BC EWCA Civ 832 undermine Reg 122, whose intent appears to be to outlaw all planning obligations which do not meet the policy tests?
In mid- October, The Lyons Housing Review published its report. Sir Michael Lyons, a former chief executive of three local authorities, was asked by the Labour Party to look into the causes of the shortage of new houses and suggest action to address the problem. One of the suggested solutions is “Use it or lose it”, actually a concept suggested by Ed Miliband, leader of the Labour Party at the time he set up the Lyons Review – see http://thedavidbrockblog.com/?p=697 .
The Lyons report explains that the market is dominated by volume housebuilders – “During the 1980s there were on average 10,000 active SME builders (those delivering 500 units or less) delivering around 57% of all output; last year there were only around 2,800 active small builders producing 27% of all new homes .” The report speaks of the “Big Six” housebuilders. It also records that mergers in the housebuilding industry actually reduced the number of houses built – see table 2 on page 104. Because it is easier to sell 100 homes from four sites than 100 homes from one site, mergers make it easier for housebuilders to achieve their targets. But in the introduction to the Use it or lose it proposal the report also adopts the observation of the Office of Fair Trading 2008 report on “Homebuilding in the UK” that “ Homebuilders deliver new homes as fast as they can sell them, not as fast as they can build them”. Anyone who has watched the release of houses on a large site will recognise this. Housebuilders will try to manage the sales so as not to put too many houses on the market at once, meaning that only a few houses are available at any moment in time.
Looking at numbers of houses with planning permission but unbuilt Lyons states that:
50,000 homes are on stalled sites
26,000 are on sites yet to start
54,000 are on sites that have started but have yet to finish
There are thus 130,000 unbuilt homes with planning permission. Some of these, it recognises, are on large developments which will take time to build out. They state that in addition they identify “270,000 homes on sites that have been in the planning system since before 2010 or which have not yet progressed to planning permission”.
Largely on the basis of that analysis, the Review suggests how Use or lose it would operate. “In response to the concerns about the slow build out of sites discussed above the review was asked to look at how a “use it or lose it” power would operate to ensure sites are built out in a reasonable timeframe.” They make four interlinked proposals :
1 Shorten the lifetime of a permission to two years
2 Require more substantial progress to preserve a planning permission than the current material operations
3 Where a site is allocated in a plan, or has planning permission, but development has not been begun within five years, the local authority should be able to charge the owners with council tax, annually, for the number of dwellings proposed
4 There should be streamlined CPO powers in extreme cases allowing purchase by councils either themselves or with another party who wishes to build out the land.
Items 3 and 4 are clearly the heart of Use it or Lose it.
The report says that item 3 will not deter landowners from putting land forward because they stand to gain from its allocation for housing. But on the other hand it would “incentivise them to deal with an agent or developer who is likely to ensure that the scheme is progressed promptly.” It is worth pausing to consider this. Firstly, it should be remembered that anyone can make a planning application over someone else’s land, and that it is not necessary to be a landowner, or even a developer or option holder, to put forward a site for the local plan. In fact, the local planning authority has the ability to include a site in a plan on its own initiative. Planning applications for large sites commonly include land not yet controlled by the applicant. I remember one such site where one landowner was implacably opposed to the development and refused to sell. The development as actually built simply surrounded his land. It would not be right to require a person who hasn’t actually promoted their site to pay this penalty council tax. There was a similar problem with Community Infrastructure Levy, now addressed somewhat unsatisfactorily by Reg 69A of the CIL regulations. Lyons suggests that the power should only apply where the landowner has volunteered the site. That will be an important principle and the detail of its implementation will need to be scrutinised carefully.
But is it right to assert that use it or lose it will incentivise landowners to deal with developers? That assumes that there are developers who want to deal. Perhaps that will not be a common problem. But the penalty council tax will put pressure on landowners and weaken their negotiating position. There will be an imperative to sell, because otherwise, the landowner will end up paying council tax on unbuilt houses. Small landowners in particular will be vulnerable; they are unlikely to appreciate the need the proposal creates to have a contract to sell before supporting the developer’s case for allocation of the land. And the contract will constrain the landowner’s power to deal with his land. Well-advised, the landowner might find a put option is desirable.
Should we not go back to those figures about unbuilt houses and the number of housebuilders? Do they really support “Use it or lose it”? First, the number of houses with permission but unbuilt is only 130,000. The target is to build 200,000 each year, so that is only 65% of one year’s supply. Of course, Lyons concludes that in addition there are “270,000 homes on sites that have been in the planning system since before 2010 or which have not yet progressed to planning permission”. But that figure needs to be interrogated; if the permissions predate 2010 and have not been implemented, then unless the normal commencement condition was amended, they will have expired. And houses “which have not yet progressed to planning permission” are just that; they do not have permission. So why are they being counted?
However it is the observations about the number of builders which seem to me to hold more interest and possibly the solution. The market is dominated by the “Big Six” volume house builders, who, we are told, release houses not at the rate they can be built but at the rate they can be sold. I suggest that is at the rate at which they can be sold consistent with achieving the return the housebuilders desire. That is simply commercial common sense, and is backed up by the sales behaviour on large sites. This suggests that the market lacks competitiveness. More housebuilders getting their houses to the market will provide better consumer choice, bring more houses to the market and keep prices in check. But if housebuilders are able to control the rate of release, the number of houses coming to the market will remain low and house prices will stay high. But there would be less tendency for that to happen if there were more players in the market and therefore more competition. Which suggests that we need more housebuilders. Having a large number of builders is rightly identified by Lyons as an important ingredient for a healthy housing market, and the report suggests various helps for SME builders in Chapter 7. But actually this all suggests that the time has come to look again at breaking up the large volume housebuilders, especially when we remember that housing starts go down the bigger they become. Isn’t that a better step than Use it or lose it?
I was very sad to hear last week that John Taylor passed away on Tuesday 6th May.
John was a great advocate and one of the most colourful members of the planning bar. He retired just over ten years ago after a splendid career in the course of which he not only had an influence on many barristers, solicitors, and planning professionals of every hue, but also of course on the landscape and townscape.
I first met John in 1985 when he was promoting the Centre Court development by Speyhawk at Wimbledon railway station, and I was acting for Greycoat who had a rival scheme designed by Terry Farrell. He was an opponent to be reckoned with. A couple of years later he was again on the other side from me, and inflicted on me my first ever defeat in a planning case. This time it was a minerals case.
John had great experience in minerals planning and had been a member of the Committee on Planning Control over Mineral Working (the Stevens Committee) which reported in 1978. I was next to encounter John and get to know him well on minerals cases. Quarries are controversial and rarely welcomed, but we were particularly successful in the case of Whatley Quarry, Hanson’s limestone quarry in the Mendips and the largest rail-linked quarry in Europe. Beginning in 1991, it turned out to be a nine year period of public inquiries and High Court applications. This time I had him on my side. The case and the ambiance suited John well, and during the public inquiries we were lucky enough to be able to stay at Mells Park, the Lutyens house nearby which belonged to Hanson. We were looked after tirelessly by Jill, the housekeeper. John too was tireless in entertaining the team and clients from a huge reserve of stories and anecdotes.
A few years earlier, in 1989 I instructed John on the A45 New Settlements Inquiry in Cambridgeshire, to act on the Great Common Farm proposal of 3000 houses and a 1 million square foot business park. It was one of seven competing proposals investigated at a six month long public inquiry, marked by extremely good relations between all the parties. The Inspectors recommended that permission be granted for Great Common Farm. It was then the victim of a General Election clear out when the Secretary of State reversed his Inspectors’ recommendation. But after High Court proceedings, a resubmission and a deal with a rival scheme, it became part of Cambourne, now built out and occupied. Ironically, South Cambridgeshire District Council, which had opposed the scheme, now has its offices in the business park. John enjoyed the case enormously. We had some meetings at his home, especially if there was a landscape issue, when he and the landscape architect Pauline Randall would also take a tour around his own well landscaped garden, John seeking advice from her himself. His prowess in landscaping was recognised in a cartoon drawn by David Mole QC, as he then was, of The Head Gardener, Great Common Farm, depicting John despatching a mole, and exclaiming “I’ve had enough of bunds actually”. It became document UM 101 in the inquiry. John’s bon viveur tendencies with the wine list at The Lamb in Ely where we stayed during the inquiry were instrumental in introducing me to Aloxe Corton, for which I have been grateful ever since.
John was a first rate advocate and like many at the planning bar was also active in the High Court. I saw him turn the Court of Appeal around one afternoon in the case of Durham County Council v. Secretary of State and Tarmac, a leading case on whether planning permissions can be abandoned. It had been obvious at the end of the morning that Durham’s advocate had convinced the judges of his case. As we walked back to John’s chambers at lunchtime he said to me, “I am going to have to give them a lesson in the planning system”. Deftly, fluently, with courtesy and firmness, and an encyclopaedic knowledge of planning law, he moved them from the view they had formed in the morning and in due course judgment was delivered for our clients, Tarmac.
John was of course famous for his probably unconscious verbal mannerisms. Sentences were peppered with “actually” and ”hmm, what”, and witnesses (whether on John’s team or from the opposition), clients and colleagues had their names recast (so guess what the Chief Planning Officer of South Cambridgeshire, Mr David Hussell became). And many of us heard the story of when “I stared death in the face, actually” when his Rolls Royce apparently drove itself forward and through the perimeter wall of a multi-storey car park. He did keep a smaller car – a Ford Escort at one time – which he called his “local authority car”. A keen wind-surfer, a hardy experience in Bedfordshire, he told me he kept his windsurfer on the roof of a BMW, so that he wouldn’t lose a moment when there was a suitable puff of wind.
Others will have their own cherished reflections on John. He was courteous, tenacious and kind; he was encouraging, hard-working and generous. I count myself privileged not only to have worked with him but also to have been able to have counted him as my friend.
His funeral will be on 22nd May at 2:30pm at All Saints Church, Clifton, Bedfordshire.
A few days ago the Labour Party announced proposed reforms of the rented housing market. In short there are three reforms. 1 – landlords would no longer be able to charge tenants the agents’ letting fees. 2 – rent increases would be limited – ceiling yet to be decided. 3 – the standard tenancy would be three years.
It seems to me that 1 is sensible, 2 could be very problematic and 3 is going to have a serious impact on the housing market.
I am going to share something from personal experience. About 23 years ago I moved from London with my family. Having found a buyer we couldn’t immediately find a house to buy, so we rented in our target area and searched. We took a six month tenancy, the shortest available, and found somewhere to buy. More recently, we sold that house last summer, and we did not immediately find a suitable house. Friends of friends were going away for a year and rented their house to us for six months, on the normal terms which enable the tenant to continue subject to giving one month’s notice, and the landlord to terminate on two month’s notice. We have found a house to buy within the six months.
What we did is very common. Estate agents were entirely familiar with what we did on both occasions and strongly recommended it. What we did, along with many others, unlocked the housing market. It puts buyers who do it in a strong position. Given the current shortage of housing, that is important. It is also practical, avoiding the need for long chains of buyers and sellers. But there is absolutely no way that we would have taken a three year tenancy in either situation, and nor would our most recent landlords have rented to us for three years. (As it is, they decided to come back after only six months, and the terms of the tenancy ensured they could have their house back.) Creating a three year norm would also require rent review provisions rather than allowing supply and demand to regulate rents.
These proposals are likely to reduce supply of rented housing, as landlords and potential landlords (those who are thinking of buying to let) realise that their tenants will no longer include those moving house. With these proposals, there is not likely to be much increase in buy to let properties as landlords and potential landlords weigh up the likelihood of Labour winning the next election. They may sell up into the owner occupied sector, which may be helpful in increasing the supply of housing for sale, but will make that market less liquid.
It is vital that we have a thriving market in housing for sale, with a good supply of houses coming onto the market and buyers able to be flexible. The current lack of supply is driving prices up. Our nation is heavily driven by the desire to own one’s own house, and whilst that may not necessarily be a good thing (other successful economies do not tie up so much personal finance in the family home), it is the way we are. A thriving market in housing to rent, which means having a good supply, is also vital, especially to the market in housing for sale. Good supply means there is plenty of competition, so that prices are naturally regulated, even driven down. But rent controls and three year minimum periods will limit the market. If rents cannot reflect the market price, who would be a landlord? With fewer properties available, the price ought to rise, but the rent restrictions will prevent that, making being a landlord even less attractive. If the minimum terms is three years, people like me will not be renting.
thedavidbrockblog is about planning law and policy, one of the aims of which is to secure a good supply of housing and avoid homelessness. I have posted about these proposed rent reforms as they seem to me to run counter to those (originally Labour party) aims.
Rookery South Energy from Waste Facility was the first case to go through the infrastructure planning system introduced by the Planning Act 2008, and it was my privilege to represent two of the parties, the local authorities. It is however also proving to be the slowest – perhaps it is inevitable that the first flushes out problems in the system. In this case the unexpected twist was the ability to refer the decision to the rarely used Special Parliamentary Procedure.
Last week, the High Court had to rule on a legal challenge arising out of the SPP; it was alleged that the environmental statement, drawn up in 2010, was effectively out of date for the purposes of the decision under the SPP in February 2013.
Mr Justice Mitting’s judgment includes a couple of wry comments which are worthy of a wider audience. I enjoyed this opener in paragraph 3, describing the new system:
“Recognising that delay in the execution of major infrastructure projects has the potential to cause significant harm to the national economy. Parliament enacted the Planning Act 2008 to speed things up. In section 14(1) it identified Nationally Significant Infrastructure Projects (“NSIPs”), thereby avoiding, by the ordering of the words, a neater acronym.”
More serious however is his comment at paragraph 11.
“A challenge is brought to the order and to the Secretary of State’s decision to refuse to revoke it. The informed observer of planning litigation will be unsurprised to learn that the challenge has nothing to do with the underlying merits of the case, but with two familiar issues:
(1) The adequacy of the Panel’s reasons for including provision for compulsory acquisition of the benefit of the restrictive covenants enjoyed by the claimants;
(2) A contention that the Environmental Impact Assessment relied on by the Commission was out of date when Parliament approved the order.
The underlying purpose of the claim is not to improve public understanding of the Commission’s decision, or to ensure that the habitats of species of birds and mammals is protected, but to protect the claimant’s commercial interest in waste processing sites, which it owns, which have been, or might be, brought into operation. Local authorities have not joined in this claim.”
Well we know what he is getting at, and indeed it can be frustrating that challenges are brought which have little to do with the actual merits, and concern commercial interests. But this surely misses the point. It is important that decisions are properly taken, in accordance with the rules and procedures which are set out. So challenge on procedure is quite properly available. As David Pannick QC pointed out in an article in the Times on 20th February this year, commenting on the changes in judicial review which would allow judges to refuse to grant a remedy if the decision under challenge would be the same when remitted for redecision : “Because judicial review exposes errors of law and abuses of power, it encourages high standards of government administration (national, local and in public authorities) and deters such defects in the future.”
The learned judge’s criticism is also that the case was brought to protect commercial interests. But most legal cases are there to protect some private interest. There are not so many altruists out there who want to bring cases just to ensure the lawful procedure is followed. Some planning cases are of course sometimes brought by bodies such as the RSPB solely to protect environmental interests, but, a significant number are brought by those who fear the economic and personal effects of a development on their lives and where they live. Whether that is a proper attitude depends on your philosophy, but it cannot normally be a misuse of the legal process.
FCC Environment (UK) Ltd v. Secretary of State for Energy and Climate Change and Covanta Rookery South Ltd.  EWHC 947 (Admin)
This is the review set up by the Labour party when Ed Miliband announced they proposed to introduce a “Use it or Lose it” provision to counter hoarding of development land. Brock Consulting’s response to the call for evidence has gone in and can be found here.
Strangely, the call for evidence opens with the statement that “the high cost of housing is largely driven by the high cost of land”. That goes contrary to how I understand residual land valuations are done (put simply, the landowner gets what’s left from the purchase price of the finished development after all the construction costs, financing costs, developer’s profit and professional fees are paid). There is a danger with Lyons’ assumption, because it would fail to apply the laws of supply and demand – the price of the finished development is influenced by the numbers of such developments in the market and the amount of money available to buy them. So easier lending to house-buyers is inflationary, and will give the landowner a better price. Once we understand that, we can see that if planning permissions are not granted for housing development that will also drive up the price of housing. (Of course, when times are hard, potential buyers tend to stick with the accommodation they have, so demand drops off and the price of housing ceases to rise, and in extreme cases, drops, leading to negative equity issues.)
I have blogged before on Use it or Lose it (here) . We already have Use it or Lose it powers – planning permissions expire, completion notices can be served, and there are powers to acquire land compulsorily for planning purposes. I hope Lyons will look into breathing new life into the rarely used completion notice and CPO powers before embarking on more legislation in the area. I have often wondered why completion notices are rarely served. Could it be that they just create the need for a new permission? If an authority has a housing shortage, revoking the permission won’t help. In which case, Use it or Lose it would need to focus on compulsory acquisition. But how will that be funded? And how will local authorities do the development? Selling back into the private sector doesn’t sound the way ahead – the new buyer will be driven by market forces and if it was better for the old owner not to develop (for example because the development was not profitable enough) how will things be different for the new buyer?
One of the questions Lyons asks is whether the system is fit for purpose. That is a wide-ranging question. The existing system was hammered out by a Royal Commission and three special committees, the last of which was the Uthwatt Committee. Its brief was to ensure that redevelopment was not held up. But it is difficult to say that a positive attitude to development prevails at the moment. Far from being a means of enabling development and providing homes, the popular attitude sees planning as a method of control, even prevention. And MPs are not immune from those attitudes, as January’s Commons debate on planning showed. If we could regain the positive approach, change hearts and minds, we might see an increase in housebuilding to the levels needed to meet the need.
Lyons is also asked to look at sharing the benefits of development with local communities. The history of post-war town planning is punctuated with attempts to do this. From betterment levy to DLT they have all been counter-productive, complex and eventually repealed. Now we have CIL, conceived by the last Labour government. This seductively simple levy (it would replace the need for complex s.106 agreements and their lengthy negotiations) is proving to be pretty complicated. It has been amended every year in attempts to correct errors in the original regulations. Even the final draft of those had to be amended at the final hour when DCLG and the Treasury at last woke up to what the Law Society had been telling it, that the regulations as drafted were retrospective and would catch planning permissions granted before the regulations were made. The basis for giving credit for existing development has proved to be a thorny problem. The latest amendments – passed on 23rd February this year – amend the very formula for calculating the amount payable. And CIL has not been, and will not be, the end of section 106 agreements.
It is popular to claim that the grant of planning permission gives the landowner a windfall. But this ignores the fact that but for legislation (notably the Town and Country Planning Acts 1947-1990) the landowner could develop without the need for planning permission. The 1947 Act nationalised development land rights, and whilst it originally created a compensation regime, that was effectively abandoned in 1953 (ironically by the Conservative government of the day) and finally abolished (again by the Conservatives) in the Planning and Compensation Act 1991. Little compensation for the expropriation of development rights has ever been paid.
We already have a tax on capital gains, Capital Gains Tax, introduced in 1965, by the then Labour government, and still going strong almost 50 years later.
We already have a well developed planning system, it would be sensible to explore whether its existing legal framework has tools to address the difficulties which have been identified. Sadly however, the Lyons panel contains no lawyers, let alone planning lawyers.
Yesterday the Government announced the creation of a new Planning Court to deal with judicial review and similar challenges to planning decisions. It also announced some changes to the rules on challenges, especially challenges to decisions of the Secretary of State and Inspectors on planning appeals.
The intention is that the Planning Court will be part of the High Court and be up and running by this summer. Interestingly this change is to deal with only about 200 judicial review cases each year, those are the planning cases, out of over 10,000 JRs each year.
Planning and JR keep strange company these days and some of the rules changes are to be found in the Criminal Justice and Courts Bill, introduced in the Commons yesterday which deals amongst other thing with penalties for possessing extreme pornographic images. Perhaps the most important change for planning is that challenges (under s.288 of the Town and Country Planning Act 1990) to Secretary of State and Inspector decisions will in future need the permission of the court, as is the case for proper judicial review. In addition, the court will be able to filter out cases where although there has been a procedural failure, the decision would be the same. The driver for a lot of these changes is the uncertainty caused by a court challenge; few developers want to commit to a development when the planning permission may be quashed. So judicial review is a very good delaying tactic, and in the meantime, economic conditions may change. The Government says that out of the 440 JR challenges which went to a hearing in 2011 (that is all categories, not just planning) only 170 were successful. So the other 270 will have delayed things. But we must remember that at least 240 of the 440 will have been non-planning cases, so only about 75 planning projects will have suffered that delay. There will of course have been delays for all 200 planning projects which were subject to JRs whether they went to trial, were settled or abandoned.
Other noteworthy changes include making it easier to leapfrog straight from the High Court to the Supreme Court, missing out the Court of Appeal where it is clear the case will end up in the Supreme Court anyway, and the disclosure of those who back claimants financially, a device used to reduce costs awards and so protect the backers if the claim is unsuccessful.
Those making or on the receiving end of judicial review claims need to take careful legal advice and the changes (only some of which I have highlighted) make this more important. But these changes should please the development industry.
 The Government’s response paper says it will take almost 400, but later reveals that in 2012 there were only 200 planning cases.
 We can deduce this from the following paragraph in the consultation response issued yesterday: “Applications more than doubled from 4,300 in 2000 to 12,600 in 2012. Yet, of the 440 which went on to a final hearing without being refused permission, withdrawn or settled in 2011 just 170 went in favour of the applicant. In 2012 the vast majority of applications, more than 10,000, were for immigration and asylum cases – and almost 200 were on planning issues.”
There is an interesting new decision on what can be taken int account in a planning agreement. Decided on 16th December 2013 but just reported today, R (OAO Hampton Parish Council) v. Herefordshire Council, Hereford RFC and Bloor Homes  EWHC 3947 (Admin) concerns a permission for a new rugby ground and 250 houses, to replace Hereford RFC’s former ground which was situated in the “functional floodplain” and frequently flooded. It was accompanied by a s.106 agreement which prevented the use of the new ground for rugby unless the old ground was transferred to the council for £1.
Sport England and the local authority parks department had both stressed to the planning committee the need to retain the existing ground for continued public amenity as sports fields. The parish council challenged the grant of permission on the grounds (inter alia) that the transfer of the Rugby Club’s existing ground to the Council, was not a material consideration because the existing ground had no relationship or connection with the proposed development, and secondly it did not meet the policy and legal test of necessity. That test is that a planning obligation may only constitute a reason for granting planning permission if the obligation is necessary to make the development acceptable in planning terms – see Reg 122 of the CIL regulations.
The parish council submitted in the High Court that there was no direct connection and that the fact that the land was to be transferred at nominal consideration and without any covenant restricting its use (so that it might be used for valuable development) showed that it was not material, not necessary and amounted to buying the planning permission. Mr Justice Hickinbottom disagreed. The land flooded and could not be used for valuable development; the objections by Sport England and the council’s own parks department showed that it was in the public interest, directly related and a material consideration which could properly be taken into account. Lastly the necessity test was not, he held, a “but for” test. It would not be right to ask if the permission would have been granted but for the planning obligation. Rather, he said, “What is acceptable in planning terms is dependent upon a complex web of policies and other material considerations, and a series of planning judgments. As I have said, there was evidence of the need to retain the existing ground use as playing fields, by way of a public amenity.” But does he really reject the “but for” test? In his next sentence he said: “However, in the circumstances of this case, if the section 106 obligation to transfer the existing grounds to the Council had not been extracted, then it would have been open to the Council through its officers to have negotiated some other entirely different benefit, or changed some other aspect of the proposal to make the entire whole acceptable in planning terms. It is impossible to say precisely what the result of such negotiations might have been. It can be said that, in this finely balanced matter, with the Section 106 obligations as agreed, the proposal was acceptable in planning terms; and, without them, as it stood it would not have been.”
Reg 122 is causing quite a lot of litigation – we already have Derwent Holding v. Trafford BC  EWCA (Civ) 832 and Persimmon v. Secretary of State  EWCA 3931 (Admin). The aim of the policy and now the regulation is to limit what can be demanded by planning authorities. IS not the approach of judges broadening the scope of what can be demanded?
(I am also interested in the substance of this obligation. What would happen in the unlikely event that the council refused to accept the transfer, e.g. if covenants or indemnities were needed from the council? The council would appear to be in a ransom position.)
PINS has issued a Procedural Guide on Planning Appeals. This is a guide for participants and includes guidance on section 106 agreements in the substantial Annexe N. It is particularly pleasing to see references with approval to The Law Society’s Model Planning Agreement. The guide also accepts the structure of that document which makes most obligations conditional on implementation. PINS previous guidance, Good Practice Advice Note 16/2010 – “Submitting Planning Obligations”, had said that everything had to come into force at once, except those parts specifically called out. That made for cumbersome drafting of the s.106 and onerous due diligence when buying land subject to a planning agreement. Other comments made by The Law Society on 16/2010 have also been taken into account.
However there are some parts of Annexe N which remain unhelpful to a streamlined planning system. For example, it continues to disapprove of the execution of planning agreements in counterpart. For non-lawyer readers, this is a tried and tested legal way of executing documents, used most extensively in leases. There, the landlord executes one copy of the lease and gives it to the tenant. The tenant executes an identical copy and gives it to the landlord. Each then holds a copy and can sue on the promises made by the other. But it is used in many other situations especially where there are several parties, often the case with s.106s, and avoids having to get every copy of the document executed by every party. Instead, each party executes enough copies for the others to whom it is making promises to have one, and thereby have an executed copy on which they can sue. This saves a lot of time, for example where some parties are situated abroad. But Annexe N sternly warns against this: “This is not appropriate to planning obligations, since these are public law documents which are entered on the planning register and the local land charges register and are often copied to residents and other interested people. The planning obligation should be conveniently available as one single document executed by all the relevant parties.” This reasoning simply does not make sense. Why does the public law nature of a s.106 agreement mean that counterparts are inappropriate? Thankfully however the next paragraph allows that there are circumstances in which counterparts are the only practical option.
Annexe N also contains an extensive section about execution and includes suggested wording for execution and attestation clauses. Whilst it is not unhelpful to include this, one has to question why it is needed. Solicitors draw up deeds every day of the week and are completely familiar with the legal formulae. Indeed there are several different formulae – choice is largely a matter of style – for example some people choose “In witness whereof” and some choose the more modern “In witness of the above”. So it is doubly disturbing that the Annexe in one case actually prescribes the wording. This really goes too far. Even the Land Registry in its very thorough and authoritative guidance on execution of documents does not do that. But PINS’ approach will mean that Inspectors will reject s.106 agreements which do not use the prescribed wording, even when the different wording used is lawful and effective. One would hope that common sense would prevail, but the omens are not good. There has been at least one case of an Inspector requiring a properly executed s.106 agreement to be re-printed and re-executed because the signatures were on a separate page from the text. The separation was contrary to the requirements of Advice Note 16/10. But the Inspector would not accept the solicitor’s assurance that the execution was still good. Whilst it is good practice not to separate signature pages in that way, the execution is still valid and 16/10 was wrong to suggest otherwise.
We have to ask if guidance like this is simplifying and speeding up the system. The answer has to be a resounding “no” to both. The solicitor who prepares a s.106 agreement for an inquiry only occasionally is likely to be caught out by this unnecessary requirement. The solicitor who prepares them regularly but whose firm has a house-style wording different from that in Annexe N will have to spend extra time changing the wording, a completely unnecessary expense for the client.
The guidance is also one-sided; it is completely silent on what constitutes proper execution by the local authority. This is not helpful. Not only is it important to know that the promises given by the local planning authority (e.g. to abide by arbitration provisions in the agreement) are properly executed, it also ignores the fact that local authorities own land and may enter into a s.106 agreement as a landowner. If PINS is concerned to ensure that private sector landowners have properly entered into s.106 agreements, that concern should also extend to the public sector.
Annexe N closes with the following words:
“If parties are legally represented we would expect their lawyers to inform the Inspector as to whether or not they are satisfied with the execution of the obligation.”
This is going to require solicitors and barristers to address squarely the question of how one executes a s.106 agreement and is probably a good thing. It also raises the issue of who has to be satisfied. The normal position in all transactions is caveat emptor, that is, “let the buyer beware”, and so it should be for the landowner’s and developer’s solicitors to satisfy themselves that the planning authority has executed properly, and for the planning authority’s solicitors to satisfy themselves whether the landowner and developer have executed properly. It should not be the task of a solicitor to confirm whether his or her client has executed properly. That would be to underwrite the client’s process. Rather, the other side should ask for such assurances as they think fit. Where land is being bought and sold, there are presumptions of due execution which apply in favour of purchasers and the question is rarely raised. But planning agreements rarely buy and sell land. In many corporate transactions, board minutes are routinely required to show that the documents are properly executed. Lawyers now need to decide what is needed for a s.106 agreement. And if it turns out to be rather cumbersome, then the government should legislate to simplify the law. Section 106 agreements are not going to go away and we need a planning system which is streamlined and fleet of foot.
To close, I return to the question, for whom is this guidance? Why is it needed at all? Some of the aspects of s.106 agreements addressed by Annexe N are incredibly basic. For example it tells us that the landowner must be a party and that the colouring of plans must reflect the description of those colours in the text. It tells us that manuscript amendments must be initialled and even includes a glossary of legal terms. What has been going on? Who is drafting s.106 agreements? Are solicitors doing a very poor job? Does PINS routinely see s.106 agreements which do not reflect the legal requirements? And if so why is this?
I chaired the White Paper Conference Company’s planning conference on Wednesday when we were privileged to hear from a number of high profile and experienced speakers, including Steve Quartermain, Chief Planner at DCLG. But perhaps the issue with the greatest challenge was revealed in the last paper, from Catriona Riddell. The question she had been asked to address might have seemed dull: “How is the Duty to Cooperate being applied in practice? Is it leading to joined up plans across neighbouring local authorities?” But her answer was far from tedious. “No” she said. It is not. She might have been justified in leaving the lectern at that point but she went on to expand on the problem.
The Duty to Cooperate is there of course to try to fill the gap caused by the removal of regional strategies. In a nutshell, she suggested that it is wrong to ask local authorities, whose geographical areas are small, to take what are strategic planning decisions, crossing boundaries, and which may require one authority to make sacrifices for the greater good. Catriona is well qualified to speak on the issue having been Director of Planning at the South East England Regional Assembly and Head of Spatial Planning at Surrey County Council.
She specifically identified three authorities which had withdrawn their plans after the Inspector had found that there had been failures to cooperate with neighbouring authorities, leading to inadequate evidence on the housing market. A total of eight plans have been withdrawn, five examinations suspended and others (she instanced Stevenage) not moving forward.
So if the Duty to Cooperate is not working, where will we do strategic planning between the national level (the NPPF)and the local? Where will we integrate wider economic issues? We do of course have the Local Enterprise Partnerships (LEPs) which bring neighbouring authorities together. The new Growth Deals will make funds available to LEPs and in return they are expected to support the Growth Agenda, which will of course involve exercising planning powers. But the LEPs do not have any planning powers; rather, those powers are at local level. So we are back to the local authority constituents of LEPs facing these issues. But Catriona Riddell pointed out that the LEP board members are heavily drawn from a business background. The first LEP board to come up on my Google search is chaired by the director of a major local employer (a player on the international stage), has a deputy chair from an international bank, and has five other members from commerce, three councillors and two academics. I do not in any way decry their capabilities nor enthusiasm and public spirit, but Catriona Riddell is surely right when she observes that they may prefer to focus on skills and enterprise rather than the politics of planning.