Enforcing developer obligations through injunctive proceedings

Persuading developers to meet their obligations under s.106 agreements following the grant of planning permission can, from time to time, be difficult and very time consuming. Housing developers are focused on delivering and selling dwellings, for obvious reasons, and perhaps not on providing amenity space, or even meeting financial obligations. Monitoring Officers will not be strangers to developer prevarication in meeting obligations under planning agreements.

In three recent cases heard before the High Court in Birmingham, I succeeded in securing orders from the court to enforce obligations in existing s.106 agreements.  

Acting for Cherwell District Council against Mytchett Construction Limited, I obtained an ex-parte injunction against the developer preventing the sale of the final dwelling of 36 until payment of an outstanding £450k due under the s.106 agreement was received. There was also a further £150k due to Oxfordshire County Council who instructed me to make an ex-parte application to obtain those monies, on the return date of the District Council application. Both applications resulted in the housing developer paying the entire amount of the outstanding monies to both authorities in a matter of days.

In the third case, acting for South Northamptonshire Council against Charles Church Developments Limited (Persimmon Homes), I obtained a mandatory injunction requiring the housing developer to provide, in accordance with a s.106 agreement, allotments, Public Open Space and a LEAP, a locally equipped area for play, within two months. The developer had planning permission for 125 dwellings and only two remained unsold, with the amenity space still not having been provided.

In all three of these cases, the developers had failed to meet their obligations under the planning agreements and were approaching a position where they may have ostensibly divested themselves of their substantive interests in the land, making enforcement of the obligations problematic. The Town and Country Planning Act 1990 expressly provides at s.106(5) for the enforceability of obligations by injunction, and the court agreed to such enforcement, with all three local authorities recovering their costs in full.

This is a very useful tool in the armoury of local planning authorities, one which perhaps is not used often enough. Local planning authorities who are having difficulty with prevaricating developers should give serious consideration to injunctive action to enforce outstanding obligations.

Michael Rudd is a barrister at Kings Chambers.