A blog about planning, planning law and planning policy

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The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.

Encouraging the modification of section 106 agreements – revisiting the Gummer version

The Autumn Statement also contains a proposal to allow planning obligations to be reconsidered, where the development to which they relate has stalled.  It would only apply to pre-April 2010 agreements.  If this sounds familiar, you are right, it isn’t new; the Budget encouraged planning authorities to look kindly on requests.  So what has changed?

Under s.106A, brought in by John Gummer in 1991, planning authorities can only be compelled to modify if the agreement is five years old and the obligation no longer serves a useful purpose. It can also be modified if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it were to modified.  The compulsion comes from the owner’s ability to appeal to the Secretary of State.

The five year period applies unless another is prescribed.  One way to help stalled developments would be to reduce the “relevant period” from five years to, say, eighteen months in the case of pre-April 2010 agreements (and I am presuming here that DCLG lawyers have satisfied themselves that different periods can be prescribed depending on the date of the original agreement).

There is no such time limit of course in s.73 applications (which, colloquially, vary conditions).  So I wonder what is the justification for the time  limit in the case of s.106 agreements.

I also hope that the Government, now that it is examining s.106, will take the opportunity to look as the gross deficiencies in the powers in s.106 itself, which make drafting planning agreements an unnecessarily complex task.  I identified a number ten years ago in my article “Planning agreements – ideas for reform” published at
[2002] JPL 12. For example, why can owners not contract out of liability on the sale of part?  Why can payments only be made to local planning authorities?  Of course, one often sees s.106s which require payments to be made to parish councils for example, or require lorries to follow certain routes.  But those will, unless very carefully drafted (e.g. by a restriction on development until the payment is made) be unenforceable, rendering the permission vulnerable to judicial review.  Some straightforward amendments would deal with this, returning the drafting of s.106 to something like it was before 1991 when John Gummer inexplicably brought in the current wording.

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