A blog about planning, planning law and planning policy

Disclaimer

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.

Why do we need the Planning Inspectorate’s guidance on planning agreements?

DeedPINS has issued a Procedural Guide on Planning Appeals[1]. 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[2].  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?

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