Section 106 Agreement
An Agreement under section 106 is a legally binding document made with a Local Authority which regulates the development or use of land.
Such an Agreement is a device frequently used by Planning Authorities to achieve an objective which cannot be secured by the use of conditions imposed upon the grant of a Planning Permission because the type of condition which can be attached to a Planning Permission is limited by law and government policy.
The imposition of an obligation by such an Agreement should only arise where it would otherwise be unreasonable to grant a Planning Permission. The obligation sought should be reasonable in extent and necessary.
If a Planning Authority seek to impose unreasonable or unnecessary obligations then you may refuse to accept them and appeal against any subsequent refusal of Planning Permission, unreasonable conditions imposed upon a Permission granted or against non-determination of the Application by the Planning Authority within the period allowed. The Secretary of State will consider each appeal on its merits but is unlikely to uphold demands by a Local Authority which go beyond the guidelines issued by him.
If the Agreement is entered into it will be enforceable against subsequent purchasers and any other person with an interest in the land to which it relates.
An Agreement is normally reached voluntarily by negotiation but if the terms or content of such an Agreement cannot be resolved then a binding unilateral Undertaking can be offered instead. If the Undertaking is accepted by the Local Authority, it will be enforced by the Local Authority. If the Undertaking is rejected by the Local Authority, the Planning Application may be taken to appeal. On appeal, the Secretary of State will take account of the terms offered and decide whether he accepts them. If he accepts the terms offered, he may grant the appeal and the terms would then become enforceable by the Local Authority.
Provisions exist for the discharge or modification of such Agreements or Undertakings on limited grounds.
For further information please contact Rob Gross
