Government relaxes law on amending planning obligations in viability push
Following on from a consultation last year, the Government has published new regulations that will give developers the right to seek to vary a planning obligation more quickly.
At present a planning obligation that is less than five years old can only be varied with the agreement of the local planning authority. This means that if an authority refuses to renegotiate there is little that a developer can do to force the issue during the first five years. The only option open to a developer is to submit a new planning application and, if necessary, appeal a refusal of the application on viability grounds. This is time-consuming and expensive and so unattractive, not to mention also having a further adverse impact on a scheme’s viability.
The situation is different for planning obligations that are more than five years old. For such agreements a developer has a legal right to require an authority to reconsider its terms and a right of appeal if agreement cannot be reached.
In a further attempt to kick-start development of stalled sites, the Government is extending the legal right to have the terms of planning obligations reconsidered to any obligation entered into before 7 April 2010. The intention is to enable developers to renegotiate planning obligations that are making development unviable more quickly if an authority is refusing to renegotiate.
The Town and Country Planning (Modification and Discharge of Planning Obligations) (Amendment) (England) Regulations 2013 come into force on 28 February and enable an application under section 106A of the Town and Country Planning Act 1990 (and a subsequent appeal under section 106B) for modification or discharge of a planning obligation dated before 7 April 2010.
Any application under the new regulations cannot be made before 28 March 2013 and the changes will not affect any planning obligations where the five year period has already expired (which can already be the subject of an application for modification or discharge) or any planning obligations entered into after 6 April 2010 (which will still not be able to be modified or discharged other than by agreement with the local planning authority for a period of five years from the date of the obligation).
Comment: These changes only affect planning obligations entered into in the five years before 7 April 2010 and, if the local planning authority is willing to negotiate, a formal application may not be necessary. But, for those planning agreements entered into at the top of the market that are now holding back development by making it unviable, these changes enable a developer to force a reluctant local authority to reconsider the level of planning obligatiions, backed-up by an appeal to the Secretary of State if necessary.