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.

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Defective section 106 agreements

I was struck by a question posted on a planning Q&A site the other day from a parish council seeking help over unpaid money under a s.106 agreement. The problem seems to be that the payment was due at occupation of the first tranche of affordable housing. It has been occupied but the payment not made.  The local authority was trying to enforce the debt against the developer, with no success, and was being offered a new s.106 for the payment to be made later.

Probably there is more than meets the eye but the post drew a comment from someone clearly knowledgeable in planning who said that “99% of the [s.106] paperwork I see is fatally flawed and it only takes one word to do so”.  Now that is an exaggeration  but I too see poorly drafted s.106 agreements.  And poor enforcement.  In the parish council’s example, I wonder why there was no restriction on occupation until the payment is made.  And why is the affordable housing provider not being pursued for the payment?  The title must have passed to it if the units are occupied.  And in the last analysis the actual affordable housing occupiers are liable as persons deriving title.  It might be politically unpleasant to enforce against them, but the remedy is there.

What examples do others have of defects like these?

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