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Section 106 Agreements and Enforcement

Most substantial planning applications are likely to involve a requirement for, or the offer of, planning obligations under s106 of the 1990 Act. All the members of our planning group are therefore regularly concerned with the advising on planning obligations in the context of planning applications and appeals.

Members of Chambers have expertise on planning viability issues, including in relation to affordable housing. Barristers from Landmark acted on all sides on relation to the Parkhurst case (both on the s. 78 appeal and in the High Court case of Parkhurst Road Ltd v SSCLG [2018] EWHC 991 (Admin)) and in the William Sutton Estates decision on affordable housing in an estates regeneration (APP/K5600/W/17/3177810).

Once section 106 agreements have been entered into and the development has commenced, different issues arise. Developers regularly look to challenge or modify planning obligations by a variety of methods including:

  • Challenges to the validity of the obligations;
  • Disputing whether development on which the obligations are conditional has commenced;
  • Challenges to the lawfulness of a decision to enforce; and
  • Applications to discharge or modify the obligations under section 106A, 106B or 106C.

Members of our planning group regularly appear for developers and local authorities in cases involving such challenges.

Enforcement of planning obligations is dealt with by way of private law claims, either in court or in arbitration. At this stage issues include:

  • Misrepresentation and mistake;
  • Construction of agreements, and implied terms;
  • Estoppel;
  • Who is liable, in particular mortgagees and tenants?;
  • Is self-help or an award of damages an adequate remedy?;
  • Are the criteria for granting an injunction met?;
  • Effect of delay;
  • Remedies for enforcing Grampian type obligations.

These issues require an understanding of private law remedies and defences as well as of the statutory and public law context. Landmark Chambers can offer barristers with expertise in these private law issues to deal with enforcement on their own or alongside a planning specialist.

Some notable reported cases involving members of chambers are:

  • City of York v Trinity One (Leeds) Ltd both in the High Court ([2017] EWHC 318) and Court of Appeal ([2018] EWCA Civ 1883);
  • R (Khodari) v RBKC [2018] 1 W.L.R. 584, CA ;
  • R (Robert Hitchins Ltd) v Worcestershire CC [2015] EWCA Civ 1060;
  • R (Millgate Development Limited) v Wokingham BC [2011] EWCA Civ 1062;
  • London Borough of Waltham Forest v Oakmesh Limited [2009] EWHC 1688.
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