Tying future s73 apps into s106 agreements - Public forum - Planning Advisory Service (PAS)

Hi,

We include a section in our S106 to cover future planning applciations (S73). Our legal team are happy to include the clause and we have not had any push back as to the inclusion by developers.

Our clause reads;

FUTURE SECTION &£ PERMISSION

In the event that any new planning permission(s) in respect of the
Development is or are granted by the Council pursuant to section 73 of the
1990 Act (Future S73 Permissions) and unless otherwise agreed between the
parties with effect from the date that the new planning permission is granted
pursuant to section 73 of the 1990 Act:

(a) the obligations in this Agreement shall (in addition to continuing to
bind the Application Land in respect of the Planning Permission) relate
to and bind the Application Land in respect of development pursuant
to that Future S73 Permission(s); and

(b) the definitions of Application, Development and Planning Permission
shall be construed to include reference to any application for that
Future S73 Permission(s), the Future S73 Permission(s) granted
pursuant to that application and the development permitted by that
Future S73 Permission(s); and

(c) this Agreement shall be endorsed with the following words in respect
of that Future S73 Permission(s) (with the blank spaces completed with
the reference number and date of issue of the relevant Future S73
Permission(s)):

'The obligations in this Agreement relate to and bind the Application
Land in respect of development pursuant to a new planning permission
reference [ ] granted on [ ] pursuant to section 73
of the Town and Country Planning Act 1990 (as amended).'

PROVIDED THAT nothing in this Clause shall fetter the general discretion of
the Council in determining any application(s) under section 73 of the 1990
Act including a requirement for a new deed or a supplemental deed to be
entered into pursuant to section 106 and/or section 106A of the 1990 Act
before that application is determined by the Council.

Hi 

We do this via the definition of "Planning Permission" in our Section 106 Agreements, which is as follows:

"the planning permission granted by the Council on [date] pursuant to the Planning Application (or such other permission as may be granted by the Council in respect of the Land pursuant to an application for planning permission to amend the Planning Permission made pursuant to Section 73 of the 1990 Act provided that such permission does not materially alter the obligations contained in this Agreement save that the Council reserves the right to require a supplemental deed pursuant to Section 106/Section 106A of the 1990 Act at its sole election)"

We have followed this approach for some years and it has not caused any problems. Ultimately, it gives us the ability to require a Deed of Variation or a Supplementary Deed should we feel it is necessary in respect of a Section 73 consent, so protects our position.

Hi, 

Yes we include reference to further S73 consents in our basic s106 template. It has helped to streamline the process for s73 apps where there is no change to obligations. The wording we use is as follows:

1. FURTHER SECTION 73 CONSENTS
   1. Subject to the proviso in clause XX if any Section 73 Consent is granted after the date of this deed:
      1. The obligations in this Deed shall relate to and bind such Section 73 Consent; and
      2. The definitions of Planning Application, Development and Planning Permission (other than for the purposes of clause 1) shall be construed to include reference to (respectively) the planning application for the Section 73 Consent the development permitted by the Section 73 Consent and the Section 73 Consent itself.

PROVIDED THAT:

1. 1. 3. Nothing in this clause shall fetter the discretion of the Council in determining any planning application for a Section 73 Consent and the appropriate planning obligations required in connection with the determination of the same;
      4. To the extent that any obligations in the Deed have already been discharged at the date that a Section 73 Consent is granted they shall remain discharged for the purposes of the Section 73 Consent; and
      5. The Council reserves the right to insist upon the completion of a separate planning obligation by Deed of Agreement pursuant to Section 106 of the 1990 Act in connection with any Section 73 Consent if the Council (acting reasonably) considered it desirable to do so.

Thanks all for your help.