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Q A development is well under way pursuant to a planning permission, but the developer now regrets having entered into a section 106 agreement with the council that requires the execution of extensive works. Can the validity of the agreement be challenged on the ground that the works are unrelated to the development.
A No. A distinction has to be drawn between the validity of the grant and the validity of the agreement. If the works requirement had been annexed to the permission as a condition of the grant, it could have been challenged on the ground that it was imposed for a non-planning purpose. However, such an objection cannot be levelled against an agreement under section 106, which, as regards specified operations or activities, merely requires them to be carried out “in, on, under or over” the land referred to in the agreement: see JA Pye (Oxford) Ltd v Gloucester District Council [2001] EWCA Civ 450; [2001] EGCS 47, considering the slightly differently worded section 52 of the Town and Country Planning Act 1971.
