Right of the Public to view Draft S106 agreements - Public forum - Planning Advisory Service (PAS)
Grŵp agored
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Wedi dechrau - Gorffenaf 2012
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Gweithgaredd diwethaf - May
Right of the Public to view Draft S106 agreements
We have had an enquiry from a member of the public who claims that the Secretary of State has advised him that he has the right to see draft S106 agreements. In this particular case it is a controversial local planning issue, and Judicial Review was sought but withdrawn on account of the financial risks to those seeking the review. I find it rather hard to understand that objectors could be able to see or make representations on a draft agreement, because until a S106 agreement has been finalised, it is not a public document, and the terms may change several times during negotiations. The planning permission has been agreed at committee subject to a S106 agreement. The proposals were advertised in the usual way before the decision was taken. Has this point been raised with any other members and with what result?
Article 25(3)(d) of the GDPO and para's B41-B43 of Circular 05/05 make it clear that details of proposed planning obligations are required to be on Part 1 of the Planning Register. Whether this means making just the HoT's or the full draft Agreement/UU available for inpsection may be open to interpretation.
What if the request had been made under an FOI or environmental regulations, whould that change your view. I assume the JR is out of time, this may just be mischief, but in the spirit of open government i would find it difficult to resist. In one case, we have made the legal file available to objectors. Yes they saw all the negotiations, but it helped us to argue that whilst they may not like the decision, there was rigour in the determination... just a suggestion. A second thought... Contracts between the Council and a supplier are not, as i understand it, subject to FOI until they are signed, then they are... is a Section 106, merely a contract between parties... an offer, acceptance, and consideration???? Food for thought
Most important in terms of legal rights to S106 information is the Town & Country Planning (General Development Procedure) (Amendment) (England) Order 2002, the objective of which is to make planning decision making as transparant and as open as possible. Under this Order it is obligatory for your planning authority to record amongst other things, in its public Register of Planning Applications, details of any s106 'proposed' for a Planning Application. So a proposd S106 doc. in the offing, not just completed S106s should, in best practice authorities be available for inspection, therefore allowing comments to be made thereon to the decision maker.
Chapter 8 of the Practice Guidance published by CLG to accompany circular 05/05 sets out what is appropriate in some detail. Remembering that the purpose of s106 is to enable otherwise unacceptable developments to be made acceptable in planning terms, their content is relevant to informing interested parties views and representations. It would be appropriate I would feel to offer applicants negotiating such agreements the facility of requesting that commercially sensitive information submitted in, say, a site viability assessment, could be kept confidential
I read this thread with interest and draw your attention to the following: March 2010 Department for Communities and Local Government New Policy Document for Planning Obligations Consultation PO7.2 Local planning authorities should as a minimum, record on the Planning Register agreed heads of terms at the start of the application process when the application is received, followed by any significant changes to draft agreements. Where applications involving planning obligations are considered by a committee, agreed heads of terms for obligations should be included in committee papers and open to public inspection.