The Planning Inspectorate have updated their guidance in relation to submission of appeals and s106 agreements securing planning obligations.
While no-doubt a dry subject, this small change has potentially significant and far-reaching implications that applicants must be aware of, particularly where viability, affordable housing, or planning obligations are key issues:
https://www.gov.uk/government/publications/planning-appeals-procedural-guide/f90d5f21-de2c-43cd-b743-6c81b9a1b70f#planning-obligations
S106 Management have always advocated front-loading matters during an appeal and not leaving anything last minute or to chance. The new guidance only reinforces this.
Written Representations
‘18.2.2.1. If the appeal is following the written representations procedure (see 9) the appellant must ensure that we receive an executed and certified copy of the planning obligation at the time of making their appeal.’
Previously guidance in written representations appeal start letters had generally been some variation of:
‘Planning obligations - section 106 agreements
If you intend to submit a planning obligation, you must read the guidance provided on
GOV.UK -https://www.gov.uk/government/publications/planning-appeals-procedural-
guide. A certified copy must be submitted to me no later than 7 weeks from the date of this letter.’
Previously, as the timescales were more generous, there was an overlap between appeal notification and final comments which would allow appellants and local authorities to engage on s106 matters.
This has now changed.
Completed S106 agreements or Unilateral Undertakings must now be submitted at the time of making your appeal.
Clearly requiring an ‘executed and certified copy’ of any planning obligation to be submitted at the time of the appeal submission will create significant challenges to many applicants, cause significant delays, and result in many written representations appeals being upgraded to hearings.
Many industry commentators have flagged that there is neither the inclination nor the resource for local authorities and their legal representatives to engage with applicants on delivering s106 agreements between the refusal of an application (or non-determination) and the submission of an appeal. There is also, arguably, a perverse incentive to delay any such agreement until such time that the appeal timescale runs out.
While for many applications any planning obligations to secure are simple and can be captured within a Unilateral Undertaking (avoiding the need for engagement with often outsourced, under-instructed and over-burdened council legal services); for more complex agreements this will provide a further barrier to schemes. We anticipate an increase in the number of appellants choosing the hearing route to avoid this issue.
The key problem for appellants to be aware of is that representatives submitting appeals may not be aware of the necessity of specific planning obligations, or the complex viability and obligations negotiations which have occurred during an application (as not all documents are uploaded to the planning file). This could potentially be fatal to your appeal.
If the necessary obligations have not been front-loaded in the appeal submission, the appeal may fail on technical grounds even if the key issues are successfully resolved.
There are two key things to draw from this.
1. If submitting a written representations appeal, always ensure that the original submission to the Planning Inspectorate is accompanied by an s106 agreement or unilateral undertaking to secure any necessary obligations. Otherwise your appeal will fail on procedural grounds.
2. If an s106 agreement cannot be made in the necessary time, and a unilateral undertaking will not suffice, consider whether an upgrade to hearing is required. This can also feed into the new guidance regarding Topic Specific Statements of Common Ground (see blog post), specifically where viability is a matter for consideration in the application or appeal.
Whatever you do – do not leave planning obligations and viability to the last minute.
Contact us today to discuss how we can assist with your planning appeal submission, s106 agreements, unilateral undertakings, or viability statements of common ground.
