There are sometimes circumstances in which, but for the final completion of a S106 Obligation, planning permission could be granted either upon application to a local planning authority or on appeal. This has led to much recent debate as to whether it is appropriate to apply “Grampian” type conditions to secure a mechanism (or “scheme”) which imply the submission of an obligation under S106. Recent discussions with both industry and local authority representatives indicate that both sides are keen to avoid planning permission being refused for want of an agreed, but un-completed, Obligation.
The Secretary of State’s policy and guidance are clear in Circular 11/95, being that permission cannot be granted subject to a condition that the applicant enters into a s106 planning obligation.
That said, until late 2007, it had been considered that, provided that (i) the purpose and essential details of a proposed Obligation had been formulated and consolidated into a final draft document, (ii) it was evident that the prospective signatories to it were content with it, and (iii) the sole remaining action was the addition of signatures, it would be reasonable to apply a Grampian type condition to a planning permission or appeal decision. Such a condition would require the provision of a “scheme”, ie an Obligation under S106. The approach was published as advice by the Planning Officers Society in respect of planning applications, and Planning Inspectors were advised that it was regarded as an appropriate approach at appeal, provided that they were entirely satisfied (with evidence) on the considerations outlined above.
However, the Secretary of State, in considering 5 recovered appeals in October 2007 advised that such a condition, in requiring a scheme, lacked detail and was imprecise. Moreover, in implicitly requiring the payment of money (as opposed to an Obligation or Agreement being entered into voluntarily) it was considered that the condition amounted to a tax and that the principle that there can be no taxation without clear support in law would thus be breached. Accordingly Inspectors were subsequently advised that they should not apply such conditions.
Having this in mind, if the Inspector is satisfied that for a development proposal to be made acceptable the provision of infrastructure or other measures is necessary, it follows that in the absence of a completed Obligation, the appeal is accordingly likely to fail.
Following a recent seminar hosted by the British Property Federation, CLG and the Inspectorate are very much aware of the concern of both industry and local government over the current position and that they urge that the question be revisited as to whether such conditions could be made workable. CLG has published a revised draft policy for consultation on the use and discharge of conditions which is canvassing options in this regard. View the consultation document.
In the mean-time parties are advised to progress any draft S106 Obligations as a matter of the utmost priority at the earliest possible stage in cases that come to appeal. Ideally a completed or advanced / final draft Obligation should be submitted with the appeal, or with the Rule 6 Statement and Statement of Common Ground in Inquiry cases, or with the Statement of case in Hearings cases. Whilst it is acknowledged that evidence at hearings and inquiries may sometimes affect the content of an Obligation, it is apparent in many cases that little consideration has been given by either party to the terms of a draft Obligation until shortly before or even at the event, let alone to consider the practicality of obtaining the necessary signatures during or immediately after the closure of the event. It is often too late by that stage to recover the position and finalise an Obligation before the Inspector’s decision is due to be made. Inspectors are advised that only in exceptional circumstances, should they await the submission of an Obligation and only then when a clear (and short) timescale has been set. They will also be well aware of the fact that where Local Planning Authorities enter into Agreements or comment upon draft Obligations they do so without prejudice to their case.
