Planning obligations are a creature of statute, the crucial provisions being found in sections 106, 106A and 106B of the Town and Country Planning Act 1990. They may be entered into either by means of a unilateral undertaking or a mutual agreement, but they must be entered into in the form of a deed and section 106 sets out detailed formal requirements. If these requirements are met, the planning obligation is enforceable against the successors in title of the landowner entering into it.
The local planning authority has a statutory power to enforce, both by injunction and entry onto the land for the purpose of carrying out works with a right to recover costs. Theoretically, a damages claim is available, but a local planning authority will rarely suffer loss in the appropriate sense.
Planning obligations are a creature of statute, the crucial provisions being found in sections 106, 106A and 106B of the Town and Country Planning Act 1990. They may be entered into either by means of a unilateral undertaking or a mutual agreement, but they must be entered into in the form of a deed and section 106 sets out detailed formal requirements. If these requirements are met, the planning obligation is enforceable against the successors in title of the landowner entering into it.
The local planning authority has a statutory power to enforce, both by injunction and entry onto the land for the purpose of carrying out works with a right to recover costs. Theoretically, a damages claim is available, but a local planning authority will rarely suffer loss in the appropriate sense.
In Waltham Forest London Borough Council v Oakmesh Ltd [2009] EWHC 1688 (Ch); [2009] PLSCS 258, a number of interesting points were argued before the court when the council issued proceedings against the current landowner for an injunction to enforce a planning obligation that required, among other things, the construction of a footbridge on a residential development.
The first point to note is that the court was unimpressed with the landowner’s argument that it was inappropriate for the court to grant a mandatory injunction in the council’s favour, rather than leave the council to undertake the work and seek to recover the cost from the landowner. Statute provides for injunctive relief and case law confirms that it is the normal remedy in such a situation. Furthermore, planning permission had been granted on the basis that the footbridge would be built for the council.
In a similar fashion, the court also rejected the landowner’s argument that just as specific performance will not normally be granted in the case of a building contract because of problems of enforcement, so the equivalent should not be granted in this case. The court pointed out that a planning obligation was not comparable to a building contract and detailed approved plans for the work prepared by consulting engineers had been drawn up.
The landowner also argued, unsuccessfully, that since part of the land in question was the subject of an agreement entered into with the council, as highway authority, under section 38 of the Highways Act 1980, the council was jointly and severally liable with the landowner to perform the planning obligation because that part was now vested in the council. The court held that as a matter of construction it was not within the contemplation of the planning obligation that it should be enforceable against the council itself. It provided, for instance, that the obligation was to be performed “at nil cost” to the council.
Finally, and no doubt much to the council’s relief, the court held that although the planning obligation failed to comply with section 106(9)(b) of the 1990 Act – in that it did not adequately define the land that was intended to be the subject of the planning application – it would be an abuse of process to allow the landowner to amend its defence to enable this to be argued. Furthermore, estoppel by representation had been established.
John Martin is a freelance writer
