No more promises

The Community and Infrastructure Levy regulations came into effect on 6 April, and although it will take a while for CIL to happen, the regulations have an immediate effect on decisions to grant permission where there is a section 106 agreement.

A planning obligation can now only be a reason to grant permission if it is necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind.

The first thing to note is that there are now only three of the five policy tests in the last published planning obligation; Circular 5/05. The others are relevant to planning and reasonable in all other respects.

Second, a section 106 agreement which fails the three tests is still valid, but the planning permission which goes with it is at risk of being declared invalid in judicial review proceedings, which must be brought within three months. It might also be challenged outside the three months in collateral proceedings. So, for anyone who wishes to challenge a planning permission with a planning obligation, the section 106 is the first port of call.

Third, permissions granted now in reliance on resolutions passed before 6 April which require a planning obligation are subject to the same constraints, even though they did not apply when the resolution was passed. The Communities and Local Government department has confirmed this is intentional.

So, it would be sensible to check carefully before entering a section 106 agreement or perhaps consider using other legal powers.

David Brock is head of planning and environmental law at Mills & Reeve david.brock@mills-reeve.com

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