`The obligations under Article 106 remain independent legal instruments in this context, as in the case of the granting of an authorisation under Article 70 [of the 1990 CPTTA]. Article 73 requires the Authority to consider whether the existing conditions for a building permit should remain exactly the same or be amended, replaced or completely relaxed. However, if an S73 permit is granted, the law does not presume that an existing development obligation applies to that permit or to development carried out under that permit. Rather, it is an issue that must be clarified by the parties before granting the section 73 permit. In 2018, Norfolk Homes decided to test the waters with respect to the S106 planning obligation and submitted an application under Article S192 of the TCPA 1990 for a certificate to legally implement the 2015 permit without complying with the original S106 agreement. The Commission rejected the certificate because the provisions of section 192 do not allow for an assessment of the legal effect of non-compliance with a section 106 obligation. An obligation under Article 106 is an independent legal instrument that is not part of the granting of a building permit and its conditions. This refusal prompted the developer to successfully pursue the trial in the High Court. «205.

Where commitments are requested or revised, local planning authorities should take into account changes in market conditions over time and, where appropriate, show sufficient flexibility to avoid blocking planned development. »; In short, Council issued a framework building permit in 2012, which was the subject of a section 106 agreement. Such an agreement did not contain any express indication that it also binds subsequent building permits granted under section 73 of the 1990 Act. In 2013 and 2015, Council granted section 73 approvals, which amended various development conditions but did not amend the section 106 agreement. The proponent submitted that the section 106 agreement was not binding on the section 73 approvals granted in 2013 and 2015, as the latter was implemented. The council said one or the other: If you plan to build, contact your local authority and review their approach to Contributions under Article 106. The majority stick to the exception, but some with a recently adopted local plan might take a different view. Section 106 agreements are drafted when the development is expected to have a significant impact on the local area that cannot be moderated by conditions attached to a planning decision. The court`s decision is clear. If a unilateral agreement or commitment under section 106 has not been expressly formulated to apply to permits under section 73 arising from the original building permit, or if it has not been modified by a subsequent act, the development authorized after the approval of section 73 is exempt from planning obligations. However, they may be subject to an urban planning obligation or condition that limits them to ancillary uses. You can find more information on our page on residential annexes. If section 106 is not complied with, it is enforceable against the person who made the undertaking and against any subsequent owner.

Section 106 may be enforced by injunction. The Growth and Infrastructure Act (Section 7) inserts new clauses into section 106 of the Town and Country Planning Act 1990, which introduces a new application and complaint procedure for the revision of planning obligations for building permits relating to the provision of affordable housing. The changes require a board to evaluate the cost-effectiveness arguments, renegotiate the levels of affordable housing previously agreed in an S106, and change the affordable housing requirement or face a call. Norfolk Homes Limited («Norfolk Homes») initially applied for a building permit for the development of up to 85 apartments in the village of Holt, Norfolk. The local planning authority, North Norfolk District Council, decided to grant the permit to Norfolk Homes subject to an agreement under section 106 of the Town and County Planning Act 1990 (as amended) («TCPA 1990»). As a result, an S106 agreement was reached to ensure that 45% of the apartments on the site were made available as affordable housing and that several financial contributions were obtained. Subsequently, the building permit was granted. The Council`s first allegation mentioned above was largely based on the recent Supreme Court decision in the Lambeth case. That case is similar to the present case in that an application for amendment of a development condition under Section 73 of the 1990 Act was made and then an authorisation was granted without repeating the original development conditions which were not the subject of the application. The question was whether the section 73 permit contained these development conditions unchanged from the original permit.

The Supreme Court held that a reasonable reader would have read the respective section 73 authorization as a mere variation of the original authorization and, therefore, that section 73 authorization should implicitly be interpreted as being subject to the unmodified conditions attached to that original authorization. The government`s guidelines for the implementation of planning obligations are set out in Gov.uk. Local planning authorities must take these guidelines into account when deciding on construction applications and have good reason to deviate from them. Under section 106(A) of the Planning Act, a person bound by the obligation may request that the obligation be modified or fulfilled after five years. North Norfolk District Council`s main defence was based on Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] 1WLR 4317 («Lambeth»), which held that a retailer was still bound by a condition of the original notice of decision that was not expressly reinstated in subsequent consent under section 73. North Norfolk`s defence depended on the interpretation of the original Section 106 and the fact that its «clear and natural meaning» meant that it also applied to development authorized by the 2015 approval. In addition, North Norfolk argued that the definition of «development» in the original section 106 should be implicitly accompanied by additional language so that the development would conform to the «building permit issued pursuant to the [a]pplication . or any amendment under section 73 of [TCPA 1990]. The text in bold was only derived from the Council and was not really present in the S106.

The Government in response to its consultations on measures to expedite negotiations and the Article 106 agreement; and on contributions to affordable housing and student residences made significant changes to the Planning Policy Guidelines (PPG), in particular Section S106, but also to related areas, including the Sustainability Guidelines. An Article 106 agreement must meet the following conditions: The Council`s argument was rejected by the court. Importantly, Holgate J. noted significant legal differences between the interpretation of section 106 obligations and the interpretation of section 73 permits. Namely: (i) The agreements and unilaterals of article 106 are autonomous legal instruments that are not an integral part of the granting of a permit. .