PINS’ very recently updated guidance on appeals includes a section on the Inspectorate’s expectations for section 106 planning obligations. The key concerns are:
The first steer is that under the new appeal guidance appellants (as applicants) should have submitted all relevant evidence as part of their application. This will include any planning obligation they intend to offer. If no planning obligation is submitted, then the Inspector will only exercise their discretion to accept a planning obligation where (i) the need for one was not identified at the application stage or (ii) where an unsigned version was before the LPA and it has been executed for the appeal.
It is unlikely that the first limb of this exception will apply. Applicants generally know whether a section 106 is required to mitigate impacts when preparing their application.
The second limb runs up against what is currently common practice: planning authorities do not readily engage in section 106 agreement negotiations until a planning officer is minded to approve the application and instruct their legal colleagues or the planning committee has resolved to approve the application. For logical reasons of costs and time management it is very often the case that up to the moment of the ‘minded-to’ or refusal decision the applicant and LPA are content that work on drafting the section 106 can wait.
In the face of the revised guidance the absence of a section 106 at the point of the refusal decision is now a problem. The planning officer or the planning committee can often cite the absence of necessary section 106 mitigation as a reason for refusal. This simultaneously makes it hard to rely on the first limb of the exception for late evidence, and the second limb introduces great uncertainty as to whether the Inspector will accept the submission of a section 106 as part of the appeal.
So, what does this mean for applicants who are minded to appeal either a refusal or a non-determination? It means that there is a real risk the Inspector will reject a planning obligation submitted with the appeal unless that planning obligation was submitted as part of the application, and above I’ve explained why traditionally this is uncommon practice.
Common practice now needs to change.
The consequence of this new guidance is that applicants will need to manage the manifest risks to the success of a future appeal where they have not submitted as part of their application a draft planning obligation prior to the date of refusal. Whether this is a negotiated draft section 106 agreement or a draft unilateral undertaking will depend on several factors including the applicant’s view of the prospects of success of their application and the approach of the LPA to negotiating section 106s ahead of the decision.
Along with second guessing the decision maker the applicant will also have to grapple with considerations of making the draft section 106 appeal ready ahead of the refusal. This will include drafting that describes the permission flexibly so the planning obligation works both for the decision granted by the LPA and a decision granted by the Inspector at appeal. It might also include a blue pencil clause so that the applicant can argue against obligations at the appeal that might be only considered necessary when the decision is in the hands of the LPA.
And what of those LPAs that take a very strict approach to the submission of further information (presumably including planning obligations) to support an application? Applicants may have to consider submitting a draft section 106 with their application in these LPA areas.
The second part of the Inspectorate’s guidance on planning obligations runs somewhat inconsistently with the first. It holds that missing the deadlines set by the guidance runs a real risk that the section 106 will not be taken into consideration at the appeal.
So what are the deadlines?
For a written representations appeal, the appellant must submit an executed (fully signed by all parties) and certified copy (marked by a solicitor as being a true copy) of the planning obligation with the appeal. There is no mention of completion (dating) of the planning obligation. Our recommendation is that it is completed before it is presented as part of the appeal submissions.
For hearings and public inquiries there is more flexibility. A draft (unsigned and undated) of the planning obligation can be submitted with the appeal. This gives the appellant the ability to negotiate with the planning authority who might very well engage (on a without prejudice basis). As part of the start date letter, the Inspectorate will set a deadline for submission of the final draft form (still unsigned and undated) in advance of the hearing/inquiry date. This can still be negotiated as the appeal unfolds. If possible, it will be completed before the appeal closes, but this is practically difficult, so the Inspector may have to set a timeline for the planning obligation to be fully executed and completed.
A word of warning here; it can take a long time to get banks to sign, so beg the Inspector for as long as possible if you have a bank party to the section 106.
