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The s. 106 that wasn't a s. 106

Planning iStock 000002733689Small 146x219David Brock analyses a recent High Court judgment that found a purported s. 106 agreement was invalid, and calls on the DCLG to address the problems the case raised.

A planning agreement has been found invalid and the planning permission it supported has been quashed in the recent case of Westminster City Council v Secretary of State. It is a salutary case.

The SofS granted permission on appeal. There was a deed submitted and claimed to contain planning obligations. They were:

  • Not to apply for a parking permit;
  • To notify prospective owners that they will not be entitled to apply for a parking permit;
  • That leases of the property will contain a covenant in favour of the lessor and Westminster City Council not to apply for a permit; and
  • To send the council a copy of any lease granted.

In an admirably clear and short judgment the court held this was not within s.106(1) and was therefore not a planning obligation. nor of course would it run with the land.

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As a consequence the permission was quashed as the Secretary of State had taken it into account.

So the lesson for applicants and appellants is to ask whether the promises you want to put into your planning agreement do fall within s.106. For example, will that promise to comply with a travel plan fall within s.106?

Planning authorities will want to ask themselves the same question. In the Westminster case, it is interesting that the validity point was not taken at the planning appeal. It was not raised until they made the High Court challenge.

But there are also lessons for the Secretary of State. His Inspector granted permission in his name on the basis of a set of promises which were not s.106 obligations. They were unenforceable against successors in title. The Inspector spent time checking that they met the  old policy tests in Circular 5/05, now unhelpfully turned into restrictive legal tests by Reg 122 of the Community Infrastructure Levy regulations. However, he failed completely to consider the basic point: were they actually under s.106 at all? Because if they weren’t, they would be unenforceable once the property was sold. But if s.106 had not been rewritten in 1991 by the Planning & Compensation Act this problem would not have happened. The previous wording, in s.106 as enacted in 1990, and its predecessor, s.52 of the 1971 Act, was much wider.

It is over ten years since I raised points like these in Planning obligations, ideas for reform and the Law Society’s Planning and Environmental Law committee has raised them several times, recently urging the Government to include reform in the latest planning bill.

The DCLG and its predecessors resolutely refuse to address the problem. Their current view is that planning authorities and applicants should get proper advice, and if they make mistakes that is their own look-out.

But this ignores the uphill struggle experienced by those who get and give proper advice. They are faced with surprise and incomprehension when they raise the question of whether the promises are within s.106 and try to draft to keep within its boundaries. And when drafting within the boundaries it is not always easy to produce something which is workable.

The judge in the Westminster case was shown drafting which did meet s.106′s constraints and commented that the result was draconian. It required use of the dwelling to cease if anyone applied for a car-parking permit. The judge doubted the court would eject a family for such a breach.

The DCLG also keeps saying that ministers are not interested in s.106 as we now have CIL. But CIL does not totally replace s.106. Planning agreements are still appropriate and needed for on-site issues and not all councils – 25% I recall – are expected to introduce CIL.

The Inspectorate itself, staffed by experienced planning professionals, has failed to spot a fundamentally flawed planning agreement. Westminster City Council also failed to spot it until the last minute.

The result is the waste of several thousands of pounds of taxpayers money in legal fees quashing the Secretary of State’s decision. Westminster’s costs will of course have to be met by DCLG.

The failure of DCLG to amend s.106 wastes the time and money of landowners, developers, planning authorities and now Central Government which will have to pay Westminster’s costs. Surely DCLG will now see the wisdom of addressing the problems of the straitjacket which is s.106.

David Brock is a consultant solicitor at Keystone Law. He can be contacted on 020 7152 6550 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared on his planning blog.

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