Solicitor Kayleigh Chapman, in our leading Planning & Environmental Law team, explains the conditions under which Section 106 Agreements can be enforced.
Conditions and Section 106 Agreements
In order to be validly imposed, planning conditions attached to planning permissions must be:
- Relevant to planning;
- Relevant to the development to be permitted;
- Precise; and
- Reasonable in all other aspects
The Planning Practice Guidance (“PPG”) confirms that positively worded conditions requiring a person to enter into a planning obligation pursuant to Section 106 of the Town and Country Planning Act 1990 are unlikely to pass the test of enforceability.
In respect of negatively worded conditions the PPG provides that in most cases such conditions would be inappropriate and that the preference should always be to ensure that planning obligations are entered into prior to the grant of planning permission.
However, the PPG does go on to say that “in exceptional circumstances a negatively wording condition requiring a planning obligation…to be entered into before certain development can commence may be appropriate, where there is clear evidence that the delivery of the development would otherwise be at serious risk”.
Of course, even if the condition would be appropriate in those circumstances it should still meet the six tests set out in the National Planning Policy Framework (NPPF).
Appeal Decision - APP/C4235/W/20/3259867
On 30 October 2019, Planning Permission was granted for the erection of five houses. That permission was subject to a number of conditions including Condition 17 which provided:
“Prior to first occupation of any dwelling hereby approved, a scheme for the provision and maintenance of a formal recreation and children’s play space and facilities, including a timetable for implementation, shall be submitted to and approved in writing by the local planning authority. The approved scheme shall be implemented in full”
In June 2020 a Section 73 Application was submitted for the development of the application site without complying with that planning condition. The Applicant considered that the condition was imprecise and unreasonable as it sought to secure open space provision by way of condition contrary to both local and national planning policy and guidance. The application was refused on 30 June 2020 as the Applicant had refused to enter into a Section 106 Agreement to secure an Open Space Contribution. The Applicant appealed.
The Inspector reviewed the determination of the original application and observed that the Officer’s Report advised that the Council was minded to grant planning permission subject to either a commuted sum towards Open Space or via an appropriately worded condition. The Inspector was referred to email correspondence between the Appellant and the Council and concluded that the Appellant was informed of the requirement for Open Space provision and had been notified of the quantum.
Turning to Condition 17 the Inspector considered a recent appeal (APP/C4235/W/20/3245868) and concluded that the wording of Condition 17 was not sufficient to identify to the Appellant what was required of them. Accordingly, in the Inspector’s view the Condition failed the test of precision and should not have been imposed.
The Inspector reviewed the PPG and acknowledged that it suggested negatively worded conditions for entering into a Section 106 Agreement should only be used in exceptional circumstances and should not ordinarily be applied.
Notwithstanding this the Inspector considered that due to the Appellant being aware of the need for Open Space provision at the time of the original application, the circumstances were in her view sufficient to justify the negatively worded condition. She therefore granted the Section 73 Application and replaced the Condition 17 with the following wording:
“No dwelling shall be occupied until all those with an interest in the land comprising the development hereby permitted have entered into a planning obligation with the local planning authority under Section 106 of the Town and Country Planning Act 1990. The obligation shall require the payment of a financial contribution towards the provision and maintenance of formal recreation and children’s play space facilities calculated in accordance with Stockport Metropolitan Borough Council’s Open Space Provision and Commuted Payments Supplementary Planning Document Adopted September 2019.”
It is important that planning conditions are not imposed unless they meet the six tests and councils should consider each condition carefully prior to imposing them to ensure that they do not fall foul of one of the tests. Whilst the Inspector in this appeal did consider a negatively worded condition could be applied, it was wholly due to the clear history and acknowledgement between the Council and the Appellant that Open Space Provision was required by policy. Accordingly, the approach by councils should be to continue to ensure Section 106 Agreements are entered into prior to the grant of planning permission where they are required.
You may find our earlier blog article, 'What is a Section 106 Agreement?' helpful.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.