SESSION 4B CONDITIONS OR OBLIGATIONS?

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Bernard Hugh Blake
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1 SESSION 4B CONDITIONS OR OBLIGATIONS? GRAHAM GOVER SOLICITOR LARTPI RTPI SW DELIVERING DEVELOPMENT CPD DAY 22 MAY 2018

2 ACHIEVE THE SAME OUTCOME Both overcome objections to the proposal Both are governed by law and guidance Both are subject to appeal or challenge Most topics may be covered by either, even affordable housing

3 CONDITION VS. OBLIGATION The development shall not begin until a scheme for the provision of five units of affordable housing as part of the development has been submitted to and approved in writing by the Local Planning Authority. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex 2 of the National Planning Policy Framework or any future guidance that replaces it.

4 CONDITION VS. OBLIGATION The scheme shall include: i) The numbers, type, tenure and location of the site of the affordable housing provision to be made which shall be distributed throughout the development and which shall consist of 30% percentage of the overall development unless otherwise agreed in writing by the Local Planning Authority.

5 CONDITION VS. OBLIGATION The scheme shall include: ii) The timing of the construction of the affordable housing and its phasing in relation to the occupancy of the market housing. No more than 80% of the market housing shall be occupied before the affordable housing is completed ready for occupation.

6 CONDITION VS. OBLIGATION The scheme shall include: iii) The arrangements for the transfer of the affordable housing to an affordable housing provider or the management of the affordable housing (if no registered social landlord is involved).

7 CONDITION VS. OBLIGATION The scheme shall include: iv) The arrangements to ensure that such provision is affordable for both first and all subsequent occupiers of the affordable housing. v) The occupancy criteria to be used for determining the identity of occupiers of the affordable housing and the means by which such occupancy criteria shall be enforced

8 DELIVERY MECHANISMS AH can be required in one of two ways: condition, or deed of obligation Default position is the latter - why?

9 CONDITION VS. OBLIGATION Site: Lower field at Bleadon Hill Westonsuper-Mare Authority: North Somerset Scheme: outline > 79 dwellings + POS AH requirements: Min 30% affordable, (82% social rented, 18% shared ownership), rounding - no AH contribution

10 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

11 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

12 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

13 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

14 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

15 CONDITION VS. OBLIGATION Our requirement is to secure the affordable housing through a s106 agreement. Our Legal team have our standard heads of terms, ready to be provided to the applicants. Registered Providers have a strong preference for a s106 to be in place on approved scheme. Additionally, delivering the affordable housing via a condition just delays the inevitable of having to agree the scheme details. It is in both parties best interests to finalise our requirements prior to any approval. Therefore we will insist on having the AH as part of the s106

16 CONDITION VS. OBLIGATION PPG restates the government s position:

17 CONDITION VS. OBLIGATION Paragraph 206 of the Framework states Planning conditions should only be imposed where they are: 1. necessary; 2. relevant to planning and 3. relevant to the development to be permitted;

18 CONDITION VS. OBLIGATION Reg 122 (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.

19 CONDITION VS. OBLIGATION Paragraph 206 of the Framework states Planning conditions should only be imposed where they are: 1. necessary; 2. relevant to planning and 3. relevant to the development to be permitted; 4. enforceable; 5. precise and; 6. reasonable in all other respects.

20 CONDITION VS. OBLIGATION A condition cannot require a contribution to be made A negatively worded condition can be imposed, but the contribution will still need to be secured by a planning obligation PPG unlikely to be appropriate in the majority of cases

21 CONDITION VS. OBLIGATION Ensuring that any planning obligation or other agreement is entered into prior to granting planning permission is the best way to deliver sufficient certainty for all parties about what is being agreed. It encourages the parties to finalise the planning obligation or other agreement in a timely manner and is important in the interests of maintaining transparency. Paragraph: 010 Reference ID: 21a Revision date:

22 LEGAL PROVISIONS OF S106 A person interested in land By agreement or otherwise May enter into an obligation Enforceable against that person or any person deriving title from that person

23 LEGAL PROVISIONS OF S106 The obligation may: Restrict the development or use of the land Require specified operation or activities to be carried out Require the land to be used in a specified way Require sums to be paid to the authority

24 LEGISLATION - CIL REGS 122. Limitation on use of planning obligations (2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is (a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development.

25 PROCESS FOR S106 & AH Policy, NPPF - not law Legislation: regulation 122 CIL Regs 2010 Specifics: e.g. viability Negotiation

26 PROCESS FOR S106 & AH Provisional agreement, heads of terms Drafting Final agreement Sealing Issue of planning permission Commencement of development

27 MODEL CONDITIONS

28 MODEL CONDITIONS

29 MODEL PLANNING AGREEMENTS

40 ENFORCEMENT?

41 ENFORCEMENT Enforcement of an obligation can be by Injunction Contempt of court, imprisonment Direct action by the LPA Recovery of costs

42 ENFORCEMENT Conditions: by service of BCN or enforcement notice, then prosecution BCN max fine 2,500 EN max fine 20,000 or unlimited in cc Proceeds of Crime Act proceedings

43 ENFORCEMENT Does the available remedy make a difference to obligation vs. condition? Experience of either?

44 LAWFULNESS Breach of condition, lawful after ten years continuous breach No equivalent provision for s106 Occupancy conditions eg agricultural worker s dwelling Where lawfulness certificate is granted

45 MODIFICATION OR DISCHARGE Obligations s106a wef 1992 Can be made at any time provided all persons against whom the obligations are enforceable against agree Also, the LPA must agree Otherwise, wait five years

46 MODIFICATION OR DISCHARGE After five years, application by any person against whom an obligation is enforceable Formal application under Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 as amended On a form provided by the LPA

48 VARIATION OF CONDITION Conditions: section 73 Not a variation, but a grant of consent in different terms Two permissions in existence Not available if the development is completed

49 DISCUSSION EXAMPLES Ensuring that any planning obligation or other agreement is entered into prior to granting planning permission is the best way to deliver sufficient certainty for all parties about what is being agreed. It encourages the parties to finalise the planning obligation or other agreement in a timely manner and is important in the interests of maintaining transparency. Paragraph: 010 Reference ID: 21a Revision date:

50 THANK YOU

Community Infrastructure Levy & S106 Workshop

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