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Planning obligations and appeals

View profile for Shruti Trivedi
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A recent appeal decision serves as a salutary reminder that planning obligations submitted in support of development proposals need to be legally binding to ensure that they can be relied on in securing permission.  In this case, the lesson proved costly for the developer and associated landowners as the appeal was dismissed.

The conjoined appeals against the refusal of permission by Uttlesford District Council for a residential development of 36 dwellings and associated infrastructure were dismissed by the Inspector on appeal on the 30 June 2017. Each appeal was supported by a signed and dated Unilateral Undertaking under Section 106 of the Town and Country Planning Act 1990 (as amended) (Section 106), which purported to secure a number of planning obligations relating to affordable housing, education infrastructure contributions, the management and maintenance of the  sustainable drainage system and associated open land; and the relocation of reptiles.  The Inspector appointed to determine the appeals concluded that the mitigation offered in the two Undertakings could not be taken into account as the drafting of the Undertakings was substantially flawed, resulting in the obligations being unenforceable.   Without this mitigation, the Inspector concluded that ‘the overall harm arising would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole’.  

Section 106 prescribes the information that a planning obligation must contain in order to be legally binding.  Planning obligations may be entered into to restrict the development or use of land in some way; to require operations or activities to be carried out in, on, under or over land; to require land to be used in a particular way; and to require payment of financial sums to be made to a local planning authority.  The obligations must be entered into in the form of a Deed which clearly states that the obligation is a planning obligation for the purposes of Section 106.  The Deed must identify the land which will be bound by the obligations and the local planning authority with the power to enforce it.  The Deed must also identify the person(s) entering into it and their interest in the affected land.  

The Planning team at Roythornes has extensive experience of drafting and negotiating planning obligations with local authorities in relation to a range of development schemes nationwide.  We can help you ensure that any obligations entered into meet the requirements of Section 106 so that they can be relied on as a reason for the grant of planning permission, and to avoid potential pitfalls like those described above.