Enforcing a S106 - Public forum - Planning Advisory Service (PAS)
Enforcing a S106
Lisa Walton, modified 9 Years ago.
Enforcing a S106
Enthusiast Posts: 30 Join Date: 15/09/14 Recent PostsI'm trying to sort out a case where the applicants have been in breach of a S106 for more than 10 years. The S106 restricted the occupancy of the dwelling to those who meet a specific local need or were recognised as being a key worker. The S106 was eventually signed (although for some reason after the house was built and occupied). There are more details behind this case, which I can explain if required, but to cut a long story short we now have a letter from their solicitor saying the S106 has been in breach for the last 14 years, which the Council has been aware of, and as such we can now no longer enforce the S106. We have been asked to sign a Deed of Discharge of Planning Obligations as the doctrine of laches would now apply.
The Council has been aware of this and has previously attempted to tackle the breach by serving a Planning Contravention Notice but action was taken no further (I do not know why as this predates my time here).
My question is can we still Enforce the S106 or, as with development, is there a statute of limitations that would suggest we now need to draw a line under this.
Lisa
MAy I suggest that firstly take a step back from this. The first question to ask yourself is why, why was the Sec 106 deemed necessary at the time? Then ask yourself what policy was it working towards achieving? The next thing to do is ask yourself is that policy still applicable? If not , why not? If so, then the next set of questions is to ask why the Authoirty never pursued this? Then and only then if you are convinced that its still applicable and worth pursuing do you consider your options. Sorry if it sounds as if i'm teaching you to suck eggs, but from the information you have made available these steps are not readiliy apparent.
At the end of the day you have to be pretty sure you are going to win, and as has been pointed out 'time' is against you on this one.
Lisa Walton, modified 9 Years ago.
RE: Enforcing a S106
Enthusiast Posts: 30 Join Date: 15/09/14 Recent PostsThanks for the advice. I've since found the correspondence relating to the Planning Contravention Notice. It seems it did not go any further at that time as the applicant set out they would seek to regularise the additional accommodation they had created in their basement, which they had been letting out to non-qualifying people. The construction of the basement accommodation was never approved (when permission was granted for the dwelling). This letter was sent in 2008. Then in 2013 the application to regularise the basement was submitted (as the applicant was elected as a councillor). However this remains undetermined. The Council were minded to grant the basement accommodation subject to a further S106 on the property to ensure it was only occupied by qualifying persons. The applicant was not prepared to sign this agreement as he took legal advice and claimed the original S106 was no longer enforceable so he was not prepared to sign a further S106, which would effectively replace the original to include the basement accommodation.
A solicitors letter has now been served on the Council stating that the Council's inaction during the life of the development implies the 'doctrine of laches' should now apply.
Back to the reason why the legal agreement was required at the time: No open market housing is allowed and the only new residential development permitted is that which is required to meet an identified local need or for key worker accommodation. Where new applications are submitted, they are only acceptable if the applicant enters into a legal agreement to ensure the occupancy is controlled. This was the case when planning permission was granted and remains the case today. It seems the applicant justified the creation of the dwelling as they a) were accepted as key workers and b) met the specific local need critera. They entered into the s106.
The applicant is trying to get the original S106 removed from the property as (he claims) it is preventing him from selling the property (its been on the market for many many years at a really high price). The Council do have an application for a key worker, who is looking at purchasing this property. So we are aware there is interest, by qualifying persons, in buying this property.
I do not know whether we would now win this case if we were to enforce the original s106, based on this additional background - any advice?
Hi Lisa,
Is it just the occupation of basement that is considered to be in breach of the s106 agreement and is this accommodation separate from the main dwelling (ie: a self-contained flat) or is it ancillary to the main dwelling?
If the basement was converted to a self-contained residential unit and never formed part of the original planning consent, then would this not be a breach of planning control in its own right and therefore not subject to the terms of the s106 agreement? On this basis, the four year time limit set out at S.171B of the 1990 Act would apply as normal.
As far as I am aware the appropriate means of enforcing a s106 agreement is by applying for an injunction. As Paul advises, it would ultimately be for a judge to decided whether or not to grant it taking account of the relevant facts before them.
Regards,
Laurence
Lisa Walton, modified 9 Years ago.
RE: Enforcing a S106
Enthusiast Posts: 30 Join Date: 15/09/14 Recent PostsOh dear! This is not looking good is it? Yes and yes. The paper trail does not suggest we took legal advice but at the time we had employed a consultant enforcement officer, who served the PCN. It appears we didn't take it further as he wrote to us to say he was going to regularise the basement accommodation. Why he then waited 5 years to apply and why we didn't do anything during that period is a mystery. I am in discussion with the council's solicitor at the moment. I've taken some of the suggestions here and put these to him but it really is, as you say, a can of worms!
Lisa
I would be concerned as a casual observer, if there was evidence that no action was taken because he was a serving councillor. Ultimately though, if this is not something that it is expedient to pursue now, then at least bite the bullet as an authority and draw a line under it and regularise it. To paraphrase Theordore Roosevelt......'in times of crisis, doing the right thing is always the best option, then doing the wrong thing, but the worst thing is to do nothing at all'
Good Luck
Lisa Walton, modified 9 Years ago.
RE: Enforcing a S106
Enthusiast Posts: 30 Join Date: 15/09/14 Recent PostsCan I just clarify that if the basement accommodation, which was not part of the originally approved dwelling, would still be covered by the S106, as this is a land charge that runs with the land/planning unit. So regardless of whether the unit of accommodation has been constructed as self-contained accommodation, it would still be covered by the original S106?
thanks
From what you have said the basement was not part of the original permission and after 4 years was immune from enforcement ( being residential ) The question then is whether, the original sec 106 was specific in that it identified specific plans. If it did, and the basement was not on those plans, then in my humble non legal opinion, you may be proverbialy 'stuffed' in trying to enforce it with regard to something that was never part of the approved plans.
Just my take......can of worms!
Lisa Walton, modified 9 Years ago.
RE: Enforcing a S106
Enthusiast Posts: 30 Join Date: 15/09/14 Recent Postsit may not have been shown as habitable, but it would have been for 'purposes incidental to' or 'ancillary to' the rest of the house ! Once thats established its very easy to then convert to residential without needing pp. It should have been conditioned to not be used as habitable as a minimum.
However, having said that it would seem you may now have an argument with regard to enforcing the Sec 106
Lisa,
On the information given, I would say that it is very unlikely that you would be able to get a judge to grant an injunction after all these years. The courts view is likely to be that if the Council did not view the breach important enough to take action shortly after the breach was revealed, then it is not serious enough now for an injunction to be granted
If you have not already done so, I strongly suggest that you ought to be taking advice from your legal staff on this rather than trying to resolve it through opinions given on this forum.