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Oliver Bussell

Partner - Sevenoaks and Ashford

The importance of planning law advice…

Planning lawyers basically help their clients to achieve new and more valuable uses of land.  Planning lawyers are also well-placed to help clients deal with enforcement issues – which the local authority has a wide discretion over.

The benefits of planning law expertise are obvious to our clients, as the following few examples illustrate:

  • The developer client who requires a s106 agreement to be negotiated to allow a grant of planning permission – money contributions as well as an affordable housing contribution are sought.  When we negotiate the agreement against the criteria set out in the committee resolution it becomes clear that no affordable housing contribution ought to have been required given the size of the development.  We advise on the best means of correcting the error without impairing the lawfulness of the hard-won planning permission and draft a mechanism in the 106 making any affordable housing contribution contingent on a much larger development than had been permitted.  This satisfies the wording of the committee resolution but in practice ensures that only the much smaller commuted sum is going to be required.
  • The landowner client offering land for conservation when a neighbouring developer requires mitigation/ offset land.  A conservation covenant as envisaged by the Environment Bill might have suited this situation but the legislation is not currently in place.  So we negotiate detailed terms for an option obliging the client to enter into a s106 agreement subject to detailed preconditions having been satisfied; this ensures that they receive the option sum while bearing no liability for performance of the works – which are guaranteed by a bond and other contractual safeguards.
  • The property investor served with a temporary stop notice by the local authority, stalling construction of his building project and leading to mounting costs while the scheme is mothballed.  We review the notice and identify a critical procedural flaw in the process of preparing it.  This makes the notice unlawful and it potentially makes the local authority liable for the client’s losses while the notice was in effect.  Having pressed the point with the council they relent and withdraw the notice, two weeks before it ceased having effect.
  • The tenant whose target property has permission for the commercial use required but where there are also conditions making the use time-limited, as well as personal to the party who had obtained it.  The client insists on pressing ahead with taking the lease.  We negotiate terms with the landlord for a detailed break clause which give our client an ‘out’ if any planning enforcement action is taken during the term of the lease.

As you can see from these examples, planning law requires a thorough knowledge of a constantly-changing area of the law – both statute, caselaw and policy – but also some imagination as to how to use the tools of statute to give a useful, practical solution.  Because planning is a function of local government it definitely also helps to have knowledge and experience of local authorities.  We work with authorities all across England, but naturally we most usually come across councils in the south east of England and London.

Contact our planning lawyers in Sussex and Kent

Oliver Bussell is Partner and experienced planning lawyer in Rix & Kay’s Commercial Property & Planning Team. For more information, please email or call 01732 448050


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