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 the need for one was not identified at the application stage or 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 will generally know whether a section 106 is required to mitigate impacts when preparing their application. The second limb runs up against common practice: planning authorities do not readily engage in section 106 agreement negotiations until a planning officer is minded to approve the application or the committee has resolved to approve. Refusals at this late stage in the decision making often cite the absence of section 106 mitigation (which is effectively rules out the first limb of the exception for late evidence).
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. That now needs to change.
Applicants managing the manifest risks to the success of their appeal of having no planning obligation before the Inspector under the new guidance risk will need to submit as part of their application a draft planning obligation that is capable of being completed during the appeal (see below). Whether this is a negotiated draft section 106 agreement or a draft unilateral undertaking will depend on the approach of the LPA.
The second steer runs somewhat inconsistently with the first. It is that missing deadlines set by the guidance runs a real risk that the mitigation provided for in the obligations (affordable homes, payment of contributions etc.) which might otherwise make the appealed development acceptable, will not be taken into consideration at the appeal.
For a written representations appeal the appellant must submit an executed (fully signed by all parties) and certified (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 is completed before it is presented as part of the appeal. This does mean form of the mitit
For hearings and public inquires 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.
