10th January 2019
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Planning conditions, s106 agreements/ undertakings and CIL contributions are the three main tools for regulating development. Our lawyers can provide targeted, expert advice to give you a flexible, marketable planning consent. This minimises the potential for successful legal challenge. It can also be used to focus the mind of a local planning authority that doesn’t want to engage with a proposal!
- Planning conditions are supposed to be the default means for regulating development – but we frequently find conditions which do not easily meet the tests of necessity, relevance, enforceability, precision and reasonableness. If the tests aren’t met, the consent can be difficult to understand. That can result in enforcement proceedings being taken where authority and landowner have been at cross-purposes. We would recommend involving our lawyers in negotiating what planning conditions are appropriate – as well as the precise wording of those conditions.
- An agreement or undertaking made using s106 of the Town and Country Planning Act is the classic legal route for mitigating the effects of development. But the wording of the Act is narrow and it is frequently misunderstood – even by competent property lawyers, and even by some people in the local authorities that issue development consents. The result is that many so-called s106 covenants are nothing of the sort. That can impair the lawfulness of a planning consent – which should give all developers pause for thought. We recommend being involved from early on – preferably at the heads of terms stage – to ensure that the objectives have been properly thought through and are properly expressed in the agreement. It is also crucial to bear in mind the interaction between s106 and the CIL regime.
- CIL, or Community Infrastructure Levy, is a flat-rate charge on new-built floorspace. It is set locally and it was supposed to replace s106 in most circumstances. The current position on CIL will be highly location-specific as many local authorities have not progressed their charging schedules. Where CIL is in force the regulations are complex and developers are well advised to be certain as to their interpretation – for example on the possibility of exemptions, deferrals or payments in kind. We can give detailed advice on this rapidly changing area of the law.