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Reminder to Developers of the Importance of Complete and Accurate Drafting of Planning Obligations

Jyoti Mehta, Solicitor in our Planning and Environmental Law Team, reminds developers and practitioners of the importance of complete and accurate drafting of planning obligations.

A recent decision by the Secretary of State to dismiss an appeal due to a defective Section 106 Agreement emphasises the need for developers to ensure they have good legal advice on drafting and preparation of planning obligations. 

Spenhill Developments Ltd had been refused planning permission by Kingston upon Thames Council to develop former government offices into a large mixed-use scheme in South West London. Spenhill subsequently appealed the Council’s decision; however the Inspector found that there were ‘serious deficiencies' in the section 106 unilateral undertaking that had been provided by the appellant and refused to grant planning permission. 

Following a public inquiry, the appeal was recovered by the Secretary of State, who agreed with the inspector’s decision. He found that there were deficiencies within the unilateral undertaking ‘particularly in relation to affordable housing provision and the contribution to the strategic roundabout works and the guaranteeing of provision of the other necessary obligations’. 

The Inspector referred to the tests set out in the NPPF and his report said “These obligations are directly related to the development and are necessary to make it acceptable in planning terms.  Without them being sufficiently guaranteed through an appropriate unilateral undertaking, I consider the development as a whole would be unacceptable”.

It is an unusual decision to refuse an application based upon a defective Section 106 agreement without giving time for the deficiencies to be addressed by the developers. This decision although unusual should reinforce to developers the need to ensure proper drafting and compliance with the procedural timetable to ensure there is a fully worked up document before he inquiry of hearing.
 A Section 106 obligation is a legally enforceable obligation which must be properly secured, complying with the various requirements in S106 of the Town and Country Planning Act 1990. This decision serves as a reminder to developers and practitioners of the importance of complete and accurate drafting to ensure the terms of any obligation are legally precise and clear and sufficiently guarantee the development will deliver the obligations. In doing so the obligations must meet the tests of the NPPF of necessary, directly related to the development and fairly and reasonably related in scale and kind to the development in order to secure the appropriate mitigation.

For more information, please contact Jyoti Mehta or a member of our Planning and Environmental Law team.

A copy of the full decision can be found here

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.