Re: replacing a condition with a S.106 - Public forum - Planning Advisory Service (PAS)
Grŵp agored
|
Wedi dechrau - Gorffenaf 2012
|
Gweithgaredd diwethaf - May
Re: replacing a condition with a S.106
If a condition is unlawful, can the LPA replace it with a S.106 if an application is made to remove the unlawful condition? (this presumes that the condition seeks to achieve something that is unlawful by condition but lawful via S.106)
I imagine that if there is an application to remove the condition then the applicant doesn't want to meet that requirement, and is therefore unlikely to agree to enter into a s106. However, as you point out, in principle s106 can be used to cover requirements that do not meet the 'conditions test' but would otherwise mitigate the impact of the development to make it acceptable.
Thanks for your response, Andy, though the question I'm really asking is whether a S.106 could be lawfully sought as a replacement for an unlawful condition under the circumstances set out below (which is a bit of a read I'm afraid). An unlawful condition is unenforceable, such that a development could be lawfully implemented, completed and occupied without complying with the condition. However, if the unlawful condition has a pre-commencement or pre-occupation trigger it is advisable to remove it to avoid any doubt as to whether an application has been lawfully implemented. On application to remove the condition is it then possible for the LPA to refuse to do so unless a S.106 is entered into? I suspect this is possible if it is argued that the the original application would have been otherwise unacceptable and should have been refused without the S.106. This would accord with the power of Planning Inspectors to dismiss an appeal against a condition if they feel that the proposal would be otherwise unacceptable. But this creates a paradox. Left alone, the unlawful condition has no effect and the LPA is powerless to retrospectively seek a S.106 replacement of the condition. Indeed, if it refuses an application to remove the offending condition solely because the applicant won't enter into a S.106, then all it does is leave the unlawful and unenforceable condition intact. It would therefore seem unreasonable (or just futile?) to seek a S.106 just because the applicant has sought to regularise the situation by striking the unlawful condition from the permission. There may be a simple answer that I've missed, but I equally suspect I may need to get a planning lawyers answer!