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 validity of planning obligations.

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;
  • 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:

  • R (Khodari) v RBKC [2018] 1 WLR 584, CA – validity of “no permit” obligation;
  • Council of City of York v Trinity One (Leeds) Limited [2017] EWHC 318 – amount due for affordable housing, decision that s106B applies to accrued obligations;
  • R (Robert Hitchins Ltd) v Worcestershire CC [2015] EWCA Civ 1060 – whether development was implementation of second permission not subject to s106 agreement;
  • R (Millgate Development Limited) v Wokingham BC [2011] EWCA Civ 1062 – leading case on availability of public law defences to enforcement;
  • London Borough of Waltham Forest v Oakmesh Limited [2009] EWHC 1688 – validity, estoppel, injunction granted to carry out building work.

Links/Resources

Law Society Model s106 Agreement
Public Law Challenges to Planning Obligations
Community Infrastructure Levy and s.106 Obligations
Enforcement of planning obligations
High Court Planning Challenges – s.106 obligations, challenges in the High Court
Section 106 and CIL

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