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FRONT LINE FIRST - LAW

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A criticism frequently levelled at the planning system is that wealthy developers are able to buy planning permissi...
A criticism frequently levelled at the planning system is that wealthy developers are able to buy planning permissions behind closed doors.

Councillors and planning officers know this is not the case, but some members of the public and pressure groups still believe that by the time a planning application reaches committee the deal has already been done.

At this stage of the process the developer will have agreed to take on a planning obligation under an s106 agreement. Although the details might never be aired at the committee, this can weigh heavily in the developer's favour.

From this month new requirements apply to the way councils keep their planning registers. The Town & Country Planning (General Development Procedure) (Amendment) (England) Order 2002 amended the 1995 General Development Procedure Order, which required councils to register copies of all planning applications and all permissions granted.

Councils must now include a copy of all s106 planning obligations - even proposed obligations must be shown. The same applies to agreements under s278 of the Highways Act. While this opens up planning to more public scrutiny it could also have implications for the negotiating procedure and councils' resourcing.

A final draft proposal clearly falls within the provisions given of when an offer becomes a 'proposed planning obligation'. But what about a developer's very first offer? What if the council puts forward a list of requirements but they are unacceptable to the applicant?

Early offers are frequently made with an eye to the politicians and directors, who must be convinced the best possible outcome has been achieved. Often lengthy, sometimes sensitive negotiations might be exposed to full glare as successive drafts of s106 agreements are placed on the register.

Developers are unlikely to welcome their dealings being exposed in this way, and councils might have difficulty handling requests for information from interested parties.

Councils must always act reasonably. How can they ask for highway improvements costing£5m and settle for£250,000? Similarly, the developers' ploy of gradually giving in may backfire. Under media and public pressure, the council might simply accept an offer as final and refuse planning permission.

Obligations that have been discharged must now be indicated on the register. As a result some councils might have to

re-draft standard s106 and s278 agreements to require notices to be given on discharged obligations.

Potential purchasers of property are likely to be especially keen on getting complete information out of the council so they can properly assess the development control status of their prospective purchase.

John O'Hara and Sandra Banks

Solicitor and partner, Planning & Public Law Group, Denton Wilde Sapte

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