Conditions and Planning Obligations
In order to exercise control over development, suitable conditions can be imposed. These will make the proposal acceptable when the only other alternative would be to refuse it. Conditions must have some specific purpose and not just be for the common good. They must not change the nature of the development applied for nor try to control something which is not properly a planning matter (e.g. who occupies a particular building). Conditions can only control the application site itself or adjoining land under the applicant's control.
Government advice includes the sorts of conditions which will, and will not, be acceptable. Applicants can appeal against conditions which they consider are unjustified. Government advice also specifically stipulates that conditions should only be imposed where they are necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable in all other respects.
There may be times when the authority wishes to control the impact of the development, but the desired restrictions go beyond the bounds conditions may cover. In this case it is possible to enter into a legal agreement with the applicant and anyone else who has a legal interest in the land. This is called a 'planning obligation' or section 106 agreement.
The agreement can relate to land outside the application site and/or not under the control of the applicant. A developer may, for example, be asked to contribute towards infrastructure costs arising out of the development. This could include new roads and sewers, or social amenities such as affordable housing, open space, or community facilities. These 'costs' should directly arise from approval of the development although this is not always easily identified.
Planning obligations should be directly related to the proposed development. Increasingly, planning authorities list appropriate obligations in site development briefs. The process is also colloquially known as 'planning gain' and often raises public concern that developers are trying to buy their planning permission. Planning permission should not be bought or sold simply because a developer promises to pay for some unrelated benefit, however much it is valued by the authority. Agreements also cause some public concern, as the details are negotiated in secret. It is only when they are completed, that agreements are registered as a land charge and are therefore publicly available. The Government is currently considering whether the contents of proposed agreements should be more openly available to the general public before they are completed.
If an authority is not prepared to enter into an agreement, a developer can still make a unilateral and legally binding agreement. This is usually done when an appeal has been lodged against a refusal of planning permission.
Page updated: 28 Feb 2007