A planning obligation is very much a creature of statute, whether a unilateral undertaking or a mutual agreement. Section 106 of the Town and Country Planning Act 1990 imposes a number of strict formal requirements. Given that a planning obligation that is related to a planning application will inevitably be capable of amounting to a material consideration, establishing its validity as such is paramount.
Section 106(1) of the Act identifies four permissible objectives of a planning obligation. It may (a) restrict the development or use of the land that is subject to it (b) require specified operations or activities to be carried out in, on, under or over the land (c) require the land to be used in any specified way and (d) require payment of a sum or sums to the local planning authority (“LPA”).
In Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin); [2013] PLSCS 91 the LPA applied to quash the decision by an inspector to grant planning permission for the conversion of the garage in a mews property into residential accommodation. It had earlier refused permission on the ground that it would conflict with development plan policy, in that it would result in the loss of protected off-street residential parking. On appeal, the landowner had submitted a unilateral undertaking executed as a deed and purporting to be a planning obligation. In this, he covenanted with the LPA not to apply to it for a parking permit, and to impose a similar restriction upon his successors in title to the land.
The inspector took the undertaking into account as one of the reasons for granting planning permission. The claimant contended, inter alia, that the inspector had erred in law in that the undertaking did not constitute a valid planning obligation.
The court allowed the claim, and quashed the planning permission. The undertaking did not match any of the objectives of section 106(1) of the Act. It did not, therefore, have the characteristics of a planning obligation, and so would not be enforceable as provided in section 106 (3) and (5). Likewise, it was not capable of being registered under section 106(11) of the Act as a local land charge.
John Martin
PP 2013/58 Where a unilateral undertaking is offered under section 106 of the Town and Country Planning Act 1990, even greater care should be taken to check that it does have all of the attributes of a planning obligation.
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A planning obligation is very much a creature of statute, whether a unilateral undertaking or a mutual agreement. Section 106 of the Town and Country Planning Act 1990 imposes a number of strict formal requirements. Given that a planning obligation that is related to a planning application will inevitably be capable of amounting to a material consideration, establishing its validity as such is paramount. Section 106(1) of the Act identifies four permissible objectives of a planning obligation. It may (a) restrict the development or use of the land that is subject to it (b) require specified operations or activities to be carried out in, on, under or over the land (c) require the land to be used in any specified way and (d) require payment of a sum or sums to the local planning authority (“LPA”). In Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin); [2013] PLSCS 91 the LPA applied to quash the decision by an inspector to grant planning permission for the conversion of the garage in a mews property into residential accommodation. It had earlier refused permission on the ground that it would conflict with development plan policy, in that it would result in the loss of protected off-street residential parking. On appeal, the landowner had submitted a unilateral undertaking executed as a deed and purporting to be a planning obligation. In this, he covenanted with the LPA not to apply to it for a parking permit, and to impose a similar restriction upon his successors in title to the land. The inspector took the undertaking into account as one of the reasons for granting planning permission. The claimant contended, inter alia, that the inspector had erred in law in that the undertaking did not constitute a valid planning obligation. The court allowed the claim, and quashed the planning permission. The undertaking did not match any of the objectives of section 106(1) of the Act. It did not, therefore, have the characteristics of a planning obligation, and so would not be enforceable as provided in section 106 (3) and (5). Likewise, it was not capable of being registered under section 106(11) of the Act as a local land charge. John Martin
