Introduction
In this blog post, we discuss an important recent change made by the Planning Inspectorate to its guidance to bring forward the deadline for preparing and submitting Section 106 agreements for planning appeals.
What is the change to the Section 106 Agreements deadline?
The Planning Inspectorate issues formal guidance providing for how planning appeals are to be dealt with in England including the preparation and submission of Section 106 agreements (also known as ‘planning obligations’) for these appeals.
On 2 October 2024, the Planning Inspectorate updated its guidance entitled ‘Making your appeal: How to complete your planning appeal form’ (the Guidance) which can be accessed in full at the link below:
This update included the following change to the deadline for submitting Section 106 agreements for planning appeals to be determined by written representations (contained in section 5 of the Guidance):
“If you intend to rely on a planning obligation you should send an executed and certified copy with your appeal form for appeals proceeding by written representations.”
Formerly, parties had 7 weeks from the start date of a written representations appeal to submit a certified copy of the completed Section 106 agreement, however this has now been brought significantly forward to be required at the time of submitting the appeal.
Even appeals to be determined by a hearing or inquiry have been affected as the Guidance has also been updated in relation to submission of Section 106 agreements for these appeals as follows:
“For appeals proceeding by either a hearing or an inquiry you should send a draft version with your appeal form and our start letter we will send you will tell you when you must send the final draft to us.”
Previously, there was no requirement to submit a draft Section 106 Agreement at the time of submitting appeals to be determined by hearing or inquiry, however this has now changed.
What are the practical implications of this change?
Formerly, a potential appellant wishing to submit a planning appeal could proceed to submit their appeal and then simply wait until after the appeal was submitted before turning their attention to the preparation and negotiation of any Section 106 agreement required for the appeal. Well, this is no longer the case. The updated Guidance from the Planning inspectorate significantly brings forward this process by essentially frontloading the preparation (and in the case of written representations appeals also the execution and completion) of Section 106 agreements.
This will present some practical issues for developers and local planning authorities (LPAs) on appeals, as previously there was a significant amount of time available for these parties to engage and negotiate Section 106 agreements during the appeal process after an appeal had been submitted, however this time particularly in relation to written representations appeals is no longer available. The parties will now need to engage to commence negotiating a Section 106 agreement well before an appeal is submitted. Lawyers for both parties will also need to be instructed to prepare and negotiate Section 106 agreements at a much earlier stage than was previously the case.
It can sometimes be difficult on appeals to engage with LPA planning officers and their lawyers to obtain their comments on or negotiate Section 106 agreements as there is little if any incentive for LPAs to do so particularly where they have refused an application. Given this fact and the now frontloaded deadline for submitting Section 106 agreements, we foresee there being a significant increase in the use of Unilateral Undertakings (UUs) (which are Section 106 agreements the LPA does not need to sign). However, UUs are not always appropriate as these agreements have restrictions (versus bilateral Section 106 agreements which are signed by LPAs) in that you cannot impose direct covenants or obligations on the LPA which can lead to complications where you have complex planning obligations to be secured by a Section 106 agreement requiring approvals or other significant input from the LPA. Further, if the LPA has not commented on an executed and completed UU before it is submitted with the appeal then it is not possible to know for certain whether the UU submitted is acceptable to the LPA or even if all the obligations under the UU are required by the LPA. An appellant will now need to predict as best they can what obligations are required based on what has been said by the LPA in its refusal notice and at the application stage (which can be difficult as not all decisions made by LPAs are equal in terms of the level of details they provide). The inclusion in Section 106 agreements of ‘blue pencil’ clauses which provide for what happens to obligations in the agreement if any are either found to be unlawful or unnecessary by a planning inspector on appeal will therefore now be particularly important.
While many potential appellants might think that the way out of all of the above difficulties is to instead have their appeal determined by a hearing or public inquiry (as opposed to written representations), the problem with this course is that it is not the appellant but rather the Planning Inspectorate that ultimately decides the appeal determination method for an appeal.
Our comments
We welcome the change in the Guidance to bring forward the deadline for submitting Section 106 agreements for planning appeals in the sense that it should in theory encourage these agreements to be prepared and negotiated (and lawyers briefed and instructed) at a much earlier stage which we believe is a good thing as in our experience the preparation and negotiation of these agreements can in some cases be left until a late stage in the appeal making negotiations unecessarily more difficult.
However, by this change to the deadline essentially frontloading the preparation and negotiation of Section 106 agreements such that these agreements need to be drafted before an appeal is submitted (and in the case of written representations appeals also executed and completed), we see this potentially resulting in practical issues for an appellant, including whether there is now sufficient time to engage with a LPA on the negotiation of a Section 106 agreement (particularly as many LPAs currently have resourcing issues and little incentive to engage where an application is refused). Further, where an appellant decides to submit a completed Section 106 agreement in the form of a UU without seeking prior LPA engagement then they will be taking on the risks associated with this such as whether the obligations in the agreement are acceptable to or required by the LPA.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
