Unilateral Undertaking - developer won't pay as says he signed "under dures - Public forum - Planning Advisory Service (PAS)

Graeme Two things. Firstly, the applicant could have refused to offer the Unilateral Undertaking, and had you subsequently refused the application on the basis of unacceptable impact on open space, he could have appealed the decision and had the reasonableness of your policy position tested by the Planning Inspectorate. That is an integral part of the planning process! Secondly, a Unilateral is served on the Council by an applicant of their own free will. So how the developer can claim to be under duress is somewhat unclear. I would suggest giving the developer a reasonable opportunity to pay as evidenced by a couple of demand letters and maybe offer an option to pay the outstanding amount in installments to ease cash flow. If this does not generate a result, I'd ask your litigation solicitors to collect the debt. Hope this helps Jim Jim Cliffe Planning Obligations Manager Bristol City Council

Hi Jim, thanks for the speedy reply. That all sounds like good common sense. I'll have a chat with my line manager and see what he suggests. Many thanks. Graeme

Jim has nailed this one. The developer has no arguement in law. He can seak to vary the undertaking if there is a viability arguement, but cannot simply refuse to pay. Speak with your legal team about how you go about extracting the cash. Personaly i would invoice him and deal with it through the county court. He won't be able to argue viability in county court because they will deal with it as a simple debt. Dies he want a CCJ?

Does the obligation meet these tests? o Relevant to planning; o Necessary to make the proposed development acceptable in planning terms; o Directly related to the proposed development; o Fairly and reasonably related in scale and kind to the proposed development; and o Reasonable in all other respects.

I see this got posted under the 'general discussion' forum too. My response on that is below. (Evan: the 5 tests you've listed were supersed by CIL reg 122 as: (a)necessary to make the development acceptable in planning terms; (b)directly related to the development; and (c)fairly and reasonably related in scale and kind to the development. ) If the developer's solicitor is really advising him to use an 'under duress' argument then the first thing I would do is advise him to change solicitor or (which may be more relevant) appoint a planning solicitor, or just a plain old planning consultant! I'm sure any court would lose no time telling him he wasn't actually under duress - he could have accepted a refusal and appealed that. What he really means is that it was expedient at the time for him to sign the UU in order to get the consent, which is a decision made by applicant's all the time. Amongst his many options, he can apply for the same development again and argue that the contribution is not warranted. What may be relevant to this is tthat an SPD spelling out contribution levels does not of itself comply with CIL reg 122, which is point that many a Planning Inspector has had to drive home in the last few years as more and more contribution SPD's have been adopted.

See RENAISSANCE HABITAT LTD) v WEST BERKSHIRE DISTRICT COUNCIL (2011) Circular tests (which have been supplemented by CIL, not superseded) do not apply to whether a S106 can be enforced once it's been completed but they would apply where a developer reapplied for planning permission prior to implementing the first permission. Also, if the developer is making an accusation of duress in any public statements I would talk to my solicitor about (threatening) a counter claim for defamation against you as duress is a criminal act involving actual or threatened violence against an individual or their property, which is an awfully long way from what you have describe.

All good sound points made. I would just add a couple of things: Andrew Ward's general point re succeeding at appeal with contributions for open space is well made. I've been responsible in my time as a chief officer for instigating "contribution SPDs" and the tendency, once adopted, is to sit back and expect the money to roll in. Of course, most developers understand the objectives of the policy and also don't want to undermine a speedy approval and so readily agree. However, LPAs should really identify in each and every case how a contributions policy applies to the particular development - why the contribution is necessary to enable a particular deficiency in open space or play space etc to be remedied, for example. This would then be part of the case at appeal. This is particularly important in the case of small developments. Some contributions policies apply to single dwellings. It's not enough just to say we've got an enabling policy and we've published a schedule, so pay up. Secondly, presumably the development has started or been completed? In which case, it is unlawful in planning terms and you have an additional stick to threaten the applicant with, although simply threatening legal counter-action would probably be simpler than the enfoecement route! Nick Taylor

There are various issues raised in these discussions. Firstly, policy or SPD entitling you to ask for contributions won't stand up on appeal against a refusal due to not entering into a s106 agreement unless the obligation you are using it to require meets the tests. Ours says we can require provision/contribution IF there is a deficiency in provision locally. We have a calculation matrix we can produce if challenged to show that our request is not just arbitrary. Second, if the developer feels the contribution is unreasonable then he can appeal apply to remove the obligation after 5 years or, as has been advised, reapply and refuse to enter into an agreement under s106. If you refuse the application, he appeals and the requirement gets tested. Finally, if you have to go to court for the money then emphasise that the developer has chosen to proceed with the development (which I presume he has in order to trigger the liability) in accordance with an undertaking submitted to you by him. If he claims he was undertaking to make a payment he didn't believe was justified to you in order to get planning permission then that is tantamount to seeking to buy his consent, which is illegal. It does sound like the developer and his lawyer are calling your bluff, and I don't think you can afford to let them get away with it. The "duress" argument is rubbish and I would have thought ought to give you a good basis for a costs award.

I tend to agree with many of the comments above. It is not merely necessary to have a policy which you refer to. You should also have a scheme (in the vicinity) to which you can mitigate for the damage the development will cause. In essence... what are you going to spend the cash on, and is that a deliverable scheme. Check the local AND parish plan, is there a scheme in there which can be funded. You have to show relevance.