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Planning Advisory Service (PAS)
Open group | Started - July 2012 | Last activity - Yesterday

Section 52 agreement

Mike Oakley, modified 9 Years ago.

Section 52 agreement

New Member Posts: 6 Join Date: 30/04/14 Recent Posts

Hi,

Although I can see many Councils are happy to discharge an obsolete Section 52 Agreement, by agreement between the parties to the Contract, I have just come across one Council that says it has no power to do this. The Council is insisting the only way to discharge such an agreement is via the Lands Chamber (the old Lands Tribunal).
The Council is not refusing to discharge the Section 52 Agreement for any planning reason they are simply saying they have no power to discharge the agreement and have no jurisdiction over them. 
What authority do other Councils use to discharge old Section 52 agreements ?
localism section 106 planning obligation injunctions planning enforcement planning condition validation section 52
Evan Owen, modified 7 Years ago.

RE: Section 52 agreement

New Member Posts: 5 Join Date: 26/04/16 Recent Posts
From a report found online: The power to vary or discharge the Agreement with the original contracting party, can be undertaken under the express, general power of competence given to Councils under S1 Localism Act 2011. 
Mike Oakley, modified 7 Years ago.

RE: Section 52 agreement

New Member Posts: 6 Join Date: 30/04/14 Recent Posts
Hi Evan, thanks for the reply. Eventually the Council did accept that it had the power to discharge a section 52 agreement under the general power of competence, however it also decided it did not wish to follow this procedure. As no right of appeal exists (unlike s106) the agreement is still gathering dust serving no useful planning purpose. An application to the Lands Chamber is still a possibility but this is probably a case of letting sleeping dogs lie.  
Former Member, modified 7 Years ago.

RE: Section 52 agreement

I had also originally thought that discharge or variation could only be done through the Lands Chamber.  However, I've come round to the view that the Lands Chamber and the process under section 84 of the Law of Property Act 1925 is only applicable if the parties don't agree to the discharge or variation.  If the parties do agree, then I would discharge or vary simply using the common law. 

 

Unlike with section 106 agreements, there is no statutory mechanism for discharge or variation of a section 52 agreement.  To my mind the general common law rule therefore applies that such a deed can be discharged or varied by the parties.  This is the same as with most other deeds and I don’t consider there is a need to rely on any statutory authority.

Former Member, modified 7 Years ago.

RE: Section 52 agreement

Why didn't the council want to follow that procedure? I have seen some get to the Tribunal and settle out of court a few days before the Hearing.