This seminar covered enforcement of section 106 agreements, highways issues in planning, and the interpretation of paragraph 49 of the National Planning Policy Framework.
3. Overview
• The legislative regime: Section 106 TCPA 1990
• Methods of enforcement and remedies
• Potential challenges to enforcement
4. S106(1) TCPA 1990
• Planning obligations under S106(1) may:
(a) restrict the development or use of land in any
specified way;
(b) require specified operations to or activities to be
carried out in, on, under or over the land;
(c) require the land to be used in any specified way
(d) require a sum or sums to be paid to the authority…on
a specified date or dates or periodically
5. S106(2) TCPA 1990
• A planning obligation may:
(a) be unconditional or subject to conditions
(b) impose any restriction or requirement… indefinitely
or for such period or periods as may be specified
(c) if it requires a sum or sums to be paid, require the
payment of a specified amount or any amount
determined in accordance with the instrument by
which the obligation is entered into
6. Limitation on use
Community Infrastructure Levy Regs 2010, Reg 122:
• Planning obligation must be:
– Necessary to make the development acceptable in
planning terms;
– Directly related to the development; and
– Fairly and reasonably related in scale and kind to
the development.
7. S106(9) TCPA 1990
• A planning obligation may not be entered into
except by an instrument executed as a deed which
– States that the obligation is a planning obligation for
the purposes of Section 106
– Identifies the land in which the person entering into
the obligation is interested
– Identifies the person entering into the obligation and
states what his interest in the land is
– Identifies the LPA by whom the obligation is
enforceable
8. Enforcement: S106(3) TCPA 1990
• S106(3): A planning obligation is enforceable by the LPA named
in it:
(a) against the person entering into the obligation; and
(b) against any person deriving title from that person.
• NB: If the requirements of S106 are not met, the obligation will
be a personal obligation not binding on future owners/occupiers
o R (Khodari) v Kensington & Chelsea RLBC (2017): a promise that future
occupiers would not apply for a residential parking permit was not a
planning obligation: it restricted use of the highway, not the land
9. Contractual agreement
• A S106 agreement is a contract between the parties and
“falls to be construed according to ordinary principles of
[contractual] construction” (Stroude v Beazer Homes (2006))
• Enforcement is dealt with by way of a private law claim
• Clear willingness of courts to enforce obligations in S106
Agreements
• Public law function: enforcement may be challengeable
by judicial review
10. Enforcement: S106 TCPA 1990
• S106(5): A planning obligation is enforceable by
injunction
• S106(6): The LPA can enter the land in default to
carry out the required operations and recover
expenses “reasonably incurred” (self-help).
11. S106(5): Injunction
• Injunction is the usual remedy for an authority
enforcing a planning obligation
• Injunction is a court order that either
o Prohibits a person from taking a particular action; or
o Requires a person to take a particular action
12. Negative Injunctions
• Negative covenants: injunction to restrain a breach
before it occurs, or reverse the effect after it
occurs
o NB: The enforcement of Grampian clauses
(negatively worded conditions restricting
development until something has been done) may
require a positive injunction
13. Positive Injunctions
• Positive covenant: enforceable by specific
performance
o Courts may be reluctant to grant a positive injunction
unless there is certainty about what is required
o Wychavon v Westbury Homes (Holdings Ltd) (2001): The
obligation to provide a proportion of “low cost
affordable housing” was too uncertain to be enforced.
However, the Court granted a negative injunction
restricting the sale of the houses unless the Defendant
ensured they were used as low cost affordable housing.
14. Positive Injunctions
• Waltham Forest LBC v Oakmesh Ltd (2009): Oakmesh
failed to provide a footpath bridge link, in breach of a
S106 obligation. Their successor housing association
argued against an positive injunction on the basis that
it was too uncertain and impossible to perform.
• The court granted the injunction: the court was able to
ascertain whether the completed work complied with
the obligation, within a reasonable degree of precision
15. Enforcement of Injunctions
• Breach of injunction: person does the prohibited
act/fails to do the required act.
• Deliberate breach of an injunction is a contempt of
court
o Serious criminal offence punishable by imprisonment
• Requirement for actual knowledge of what the
injunction prohibits/requires
16. Damages or injunction?
• Courts will not award an injunction if damages are
an adequate remedy
• However, damages are rarely an adequate remedy
for breach of planning obligations (Avon County
Council v Millard (1986))
• Difficult to quantify measurable loss for damages
17. Damages
• Aim: put the injured party into the position he would
be in if the covenant had been complied with
• Could a LPA be awarded the anticipated cost of
carrying out required works themselves?
– No loss suffered if LPA does not own the land
– Unlikely court would award damages in these
circumstances: inconsistent with LPA’s power to
enter land and recover costs under S106(6)
• Breach of obligation to pay a sum of money: claim is
in debt, not damages
18. S106(6): Enforcement by self-help
Without prejudice to subsection (5) [obligation enforceable
by injunction], if there is a breach of a requirement in a
planning obligation to carry out any operations in, on,
under or over the land to which the obligation relates, the
authority by whom the obligation is enforceable may:
(a) enter the land and carry out the operations; and
(b) recover from the person or persons against whom the
obligation is enforceable any expenses reasonably
incurred by them in doing so.
19. Enforcement by self-help
• S106(7): LPA must give 21 days’ notice of their
intention to exercise this power to “any person
against whom the planning obligation is
enforceable”
• S106(8): It is an offence to wilfully obstruct a
person exercising this power
– Liable to a fine not exceeding level 3 on the
standard scale (currently £1,000)
20. Enforcement by self-help
• LPAs may be reluctant to use this power due to the
scope for uncertainty as to whether costs have
been reasonably incurred
– Risk of protracted/costly dispute
– Court accepted this as a reasonable objection to the
use of this remedy in London Borough of Walthem
Forest v Oakmesh Ltd (2009)
21. Defences to Enforcement: Delay
• Delay (‘laches’)
o Common equitable defence to injunction
o Unreasonable delay in commencing proceedings so as to
be evidence of abandonment of the agreement, or to
otherwise make it unjust to order specific performance
o Delayed enforcement to allow for negotiations between
the parties will not amount to a defence
o Take prompt action if enforcement required
22. Defences to enforcement
• Legal formalities not complied with
– Important that obligations are valid from the outset
Comply with S106 TCPA 1990
Comply with Reg 122 Community Infrastructure Levy
Regulations 2010
Not Wednesbury unreasonable
– However, defence unlikely to succeed if developer
did not challenge obligations at outset
23. Change of Circumstances
• Developer considers that a less onerous S106
obligation would be required if a new application
were made
– e.g. changes to viability considerations reducing
need for affordable housing
• Consider voluntary renegotiation?
• Obligation over 5 years old: Developer can apply to
modify or discharge obligation (S106A TCPA 1990)
24. Change of Circumstances
R (Renaissance Habitat Ltd) v West Berkshire DC (2011)
• A Developer applied for judicial review of the LPA’s
decision to issue proceedings for non-payment of
infrastructure contributions. S106 agreement specified
the amounts and due dates.
• Sums were calculated on the basis of planning guidance in
place at that time. Guidance subsequently changed,
leading to lower contributions. Developer only paid the
lower amount.
25. Change of Circumstances
R (Renaissance Habitat Ltd) v West Berkshire DC (2011)
• Held: The obligation constituted an enforceable
contract, and the Developer should be held to its
agreement. There was nothing unlawful about the
agreement or the earlier guidance.
26. Time Limits for Enforcement
• Statutory limitation periods: Limitation Act 1980
– Claim for breach of a contract (deed): 12 years
from date of the breach
• Agreement may include clauses to extend/shorten
statutory period
• N.B. Delay can be a defence to enforcement
(‘laches’)
27. Challenge on public law grounds
• Public law decisions by LPA:
– The decision not to accept an application to modify
or discharge a S106 obligation (R (Batchelor
Enterprises Ltd) v North Dorset DC (2003))
– The decision to enforce a s106 obligation (R
(Renaissance Habitat Ltd) v West Berkshire DC
(2011))
• Decisions challengeable by judicial review
29. Case law update: Interpretation
of paragraph 49 of the National
Planning Policy Framework
(NPPF)
Ben Standing - Associate
30. Overview
Suffolk Coastal District Council v Hopkins Homes and
another; Richborough Estates Partnership LLP and
another v Cheshire East Borough Council (2017)
• Joined appeal: two cases
• Supreme Court judgment handed down 10.05.2017
• Clarification on legal status of NPPF and interaction
with the local development plans
• Clarification on interpretation of paragraph 49 NPPF
31. Statutory Framework: Local Plans
Planning and Compulsory Purchase Act 2004, Part 2:
• S.15: Requirement for local development scheme, which
must specify the development plan documents
• Documents together comprise the local development
plan for the area
• S.19(2): In preparing documents, local authorities must
have regard to “national policies and advice contained
in guidance issued by the Secretary of State” (such as
the NPPF)
32. Statutory Framework: Local Plans
Town and Country Planning Act 1990
• S.70(2): In dealing with a planning application, local
authorities must have regard to:
a. the development plan, so far as material to the
application,
b. any local finance considerations, so far as material to
the application, and
c. any other material considerations
33. Statutory Framework: Local Plans
Planning and Compulsory Purchase Act 2004:
• S.38(6): If regard is to be had to the development
plan, a determination under the planning acts must
be in accordance with the plan unless material
considerations indicate otherwise
34. The NPPF
• Contains economic, environmental and social
planning policies for England
• A ‘material consideration’ in planning decisions
• Does not affect the primacy of statutory
development plans in decision making
• Paragraph 14: “presumption in favour of
sustainable development” – golden thread
35. The NPPF paragraph 14
‘Presumption in favour of sustainable development’
• For decision-taking, this means:
Where the development plan is absent, silent, or
relevant policies are out-of-date, granting permission
unless:
Any adverse impacts of doing so would
significantly and demonstrably outweigh the
benefits
Specific policies in the NPPF indicate
development should be restricted
36. The NPPF paragraphs 47-55
‘Delivering a wide choice of high quality homes’
• Local planning authorities should identify and
update annually a supply of sites sufficient to
provide five years’ worth of housing against their
housing requirement
• Additional buffer of 5% to ensure choice and
competition (20% where there has been a record of
persistent underdelivery)
37. The NPPF paragraph 49
• Paragraph 49:
“Housing applications should be considered in the
context of the presumption in favour of sustainable
development. Relevant policies for the supply of housing
should not be considered up-to-date if the local planning
authority cannot demonstrate a five-year supply of
deliverable housing sites”
• Weight given to policies depends on consistency
with NPPF
• Interpretation of this paragraph central to the case
38. Relevant policy for the supply of
housing
• What is a “relevant policy for the supply of housing”?
– Narrow definition: limited to policies dealing only with
the numbers and distribution of new housing
– Wider definition: including all policies providing
positively for new housing supply, and those whose
effect is to restrict land for housing development
• 7 previous High Court cases – different interpretations
39. The facts
• Neither council in the two cases were able to
demonstrate a five-year supply of housing sites
• Suffolk: the inspector decided settlement boundary
and countryside policies were not policies for
supply of housing, therefore found them up to date
• The inspector upheld the Council’s refusal of
permission for a development of 26 houses
40. The facts
• Cheshire: the inspector decided countryside and
green gap policies were policies for supply of
housing, and therefore were out of date
• In line with paragraph 14 of the NPPF, permission
should be granted unless adverse impacts outweigh
benefits/specific policies in NPPF restricting
development
• Inspector granted permission for 146 dwellings on
open land
41. Outcomes
• Suffolk: Appeal should be re-determined. The
inspector erred in determining that the policy on
the boundary was up to date. Inspector should
consider policies may need to change to meet
housing objectives
• Cheshire: The Supreme Court held that the
inspector erred in treating policies as policies for
supply of housing, but was entitled to conclude the
weight to be given to them was reduced. Grant of
permission upheld.
42. Discussion
• Para 14 – tilted balance
• Creation of non-statutory fiction
• Natural reading of policies
• Matter for decision maker – not the court
• In relation to each appeal look at facts
43. Relevant policy for the supply of
housing
• Supreme Court favoured a narrow view
• Straightforward interpretation: the policies by
which acceptable housing sites are to be identified
and the five-years supply target is to be achieved
• “The important question is not how to define
individual policies, but whether the result is a five-
year supply in accordance with [NPPF objectives]”
44. Relevant policy for the supply of
housing (2)
• But this “should not be seen as leading, as the
lower courts seem to have thought, to the need for
a legalistic exercise to decide whether individual
policies do or do not come within the expression.”
• Objective of para 49 to indicate a way in which the
lack of a five years supply of sites can be put right.
Sometimes even recent policies can be out of date.
45. Effect of paragraphs 49 and 14
• If a relevant policy is out of date applying paragraph 49,
the balance is tilted in favour of granting permission
under paragraph 14
– However, matter remains one of “pure planning
judgment”
• If a relevant policy is not out of date, weight given to it
alongside other material considerations is a matter for
the decision-maker in accordance with ordinary principles
46. Effects
• Confirmed primacy of statutory development plan -
even out of date they retain statutory force, but
focus shifts to other material considerations
• Wide discretion afforded to decision-maker
– Judgment acknowledged expertise of planning
inspectors: caution against undue intervention by
courts in policy judgments
47. Effects (2)
• Less legalistic approach
• Greater clarity?
• Move away from arguing whether a document is a
policy for the supply of housing
50. Overview
• Status of highway works
• Highways permitted development
• Reserved matters
• Blight issues
• Stopping up orders
• Section 278 and section 38 agreements
51. Highway classification
• No clear statutory definition
• “…a right for all Her Majesty’s subjects at all seasons
of the year freely and at their will to pass and repass
without let or hindrance.” (Ex parte Lewis (1888))
• A defined route, including footpaths, bridleways
and carriageways.
• Obstructing a highway is a criminal offence (s.137
Highways Act 1980). Damages payable for loss
caused by wrongful obstruction
52. National Planning Policy
Framework
• Focus on promotion of sustainable transport system
– Priority to pedestrians, cycling and public transport
– Reducing need to travel
• Developments that generate significant movement:
– Located where need to travel minimised
– Located where sustainable transport can be maximised
– Requirement to produce a Travel Plan, Transport
Statement or Transport Assessment
53. Status of Highway Works
• Definition of ‘development’ excludes works by a
highway authority within the boundary of a road,
where required for the maintenance or improvement
of the road (TCPA 1990 (s.55(2)(b))
• Permitted development under Town and Country
Planning (General Permitted Development) Order
1995: Schedule 2 part 9
54. Permitted Development
• Permitted development by highways authorities:
– On land within the boundaries of a road, any works
required for the maintenance or improvement of
the road
– On land outside but adjoining the boundary of an
existing highway, works required for or incidental
to the maintenance or improvement of the
highway
55. Permitted Development
• Permitted Development Order 2015, Schedule 2 part 2
• The formation, laying out and construction of a means of
access to a highway, where required in connection with
permitted development
– Access to trunk road/classified road not permitted
• NB: exception where development would obstruct the
view of persons using the highway so as to cause danger
(Article 3(6))
56. Permitted Development
James v Secretary of State for Wales (1998)
• Two houses, already with access to a road to the north
• Hardstanding constructed under permitted development,
then access road linking to private service road, which
connected to highway 30m away
• Was this access road permitted development?
• Held: ‘Means of access to a highway’ should directly connect
with the highway. Whether access is ‘required’ is an
objective test not dependant on whether applicant merely
requires additional access.
57. Reserved Matters
• Town and Country Planning (Development
Management Procedure) (England) Order 2015
• Reserved matters in relation to an outline planning
application or permission can include ‘access’:
“the accessibility to and within the site, for vehicles,
cycles and pedestrians in terms of the positioning and
treatment of access and circulation routes and how
these fit into the surrounding access network” (Art. 2(1))
58. Reserved Matters
• Reserved matters may not be used to
alter/frustrate the development for which outline
permission granted
Proberun Ltd v Secretary of State for the Environment
(1991)
– Outline planning permission granted by Secretary of
State on appeal, despite it being clear that
satisfactory access could not be provided
– Access reserved
59. Reserved Matters
Proberun Ltd v Secretary of State for the Environment
(1991)
• Held: Court of Appeal held that the Secretary of
State could not subsequently refuse an application
for reserved matters having granted the outline
permission.
• Only remedy was to revoke permission or use
Highways Act powers to create satisfactory access
60. Blight (s.150 TCPA 1990)
• Blighted land: land affected by planning proposals
of public authorities
• Various classes include highway proposals
• Blight notice served on ‘appropriate authority’ by
owner of land (s.169 TCPA 1990)
• Highways authorities can be ‘appropriate authority’
• Requires authority to purchase owner’s interest
61. Blight
Smith and Smith v Kent County Council (1995)
• Council proposed to widen highway in front of
claimants’ 3-bedroom semi in Maidstone.
• Claimants served blight notice requiring council to
purchase whole property
• Council’s counter-notice stated proposal to acquire
part of front garden only
• Held: Blight notice upheld. Impact of highway
scheme in entirety to be considered: affect on
quality of residence in house.
63. Stopping up Order: s.247 TCPA 1990
Section 247 Town and Country Planning Act 1990:
• Order by the Secretary of State (or relevant London
Council within Greater London) for the stopping up or
diversion of any highway necessary to enable development
to be carried out:
o In accordance with valid planning permission; or
o By a government department
• Section 257: equivalent provision for footpath/bridleway
o Order made by local authority
64. Effect of Stopping up Order
• A stopping up order extinguishes the public right of
way
o No compensation payable to those adversely affected
o In the case of an adopted highway, ownership reverts
back to the former landowner, free from public rights
• NB: A stopping up order does not effect any private
rights of way that exist over the land:
65. Effect of Stopping up Order
Walsh v Oates (1953)
• Claimant owned a cottage adjoining a road subject to a
closing order. He claimed the right to free passage
along the road and an injunction to stop the defendant
interfering with that right
• Held: The order destroyed the public right of way, but
that did not mean a person with a private right of way
was debarred from using it
66. Discretionary power
Vasiliou v Secretary of State for Transport (1991)
• Claimant ran Giggi’s Taverna on a busy street in
Blackpool. 60-70% of business was passing trade
• Planning permission was granted for nearby
development subject to grant of stopping up order,
which would turn claimant’s street into cul-de-sac
• Should the Secretary of State take this into account
when exercising his discretion to grant the order?
67. Discretionary power
• Vasiliou v Secretary of State for Transport (1991)
• The Court of Appeal held that the Secretary of
State could and indeed ought to take into account
any adverse effect an order would have on those
whose rights would be extinguished
68. Stopping up Orders
• Conflict between planning permission and public
right of way is necessary for grant of a stopping up
order
o Obstruction by physical development, or change of
use if it requires closure of highway
• Stopping up order can also make provisions
necessary/expedient for provision/improvement of
any other highway
69. When can an order be made?
• Stopping up orders cannot be made retrospectively
• Development can have started, and even have
blocked the highway before the order is made
• However, the development cannot be substantially
completed before the order is made (Ashby v
Secretary of State for the Environment (1980))
• If the development is substantially completed,
developer should seek Magistrates’ Court order (s.116
HA 1980)
70. When can applications be made?
• In advance of grant of planning permission
(s.253(1) and 253(1A) TCPA 1990)
• Applicants must provide copy of planning
permission before order can be made (s.253(5))
• No authority to stop up any highway until order
granted
71. Making a stopping up order
Section 252: Procedure for making of orders
• Secretary of State to serve notice on:
– every local authority in whose area the highway is
situated (county council, parish council, community
council, police authority, combined authority etc…)
– any National Park authority which is the local
planning authority for the relevant area
– any water, sewerage, hydraulic power, electricity
undertakers or gas transporter having cables, mains,
sewers, pipes or wires on or under the land
72. Making a stopping up order
Section 252: Procedure for making of orders
• Notice to be published in the London Gazette and
at least one local newspaper
• Notice to be displayed prominently at each end of
the highway
• Notice does not have to be served on any
landowners affected by the stopping up order
73. Objections to stopping up
• 28-day period to object following publication of
notice
o Objections sent to Secretary of State, copied to
applicant.
o Applicant to resolve objections
• Objections from consultees: Secretary of State
must hold a local inquiry (s.252(4))
• Objections from others: Secretary of State may
hold a local inquiry
74. Stopping up order: unusual uses
• Permitted development: temporary use of land
– Town and Country Planning (General Permitted
Development) (England) Order 2015, Schedule 2 Pt 4
– Use of land for any purpose for no more than 28 days in
any calendar year
– No more than 14 days for market or motor racing
• Stopping up order to use highway for event e.g. parade
– N.B. Provisions relating to motor racing under the Road
Traffic Act 1988
76. Section 278 Agreements
• Section 278 Highways Act 1980
• Legal agreement between a highway authority and
a developer for the developer to either pay for or
undertake necessary works to a public highway in
relation to a development
– E.g. access route to a new site; pedestrian crossing
• Highway authority must be satisfied of “benefit to
the public”
77. Refusal to enter s.278
R v Warwickshire County Council ex parte Powergen (1997):
• District Council refused planning permission for a
supermarket (including means of access) after consulting
the County Council (the highway authority) who considered
the proposal detrimental to highway safety
• Permission granted by Inspector on appeal. County Council
subsequently refused to enter a s.278 agreement for the
necessary highway works for the same reason the District
Council had refused planning permission
• The developer applied for judicial review of the refusal to
enter the s.278
78. Refusal to enter s.278
R v Warwickshire County Council ex parte Powergen (1997):
• Held: The Court of Appeal upheld the application for JR
• The highway authority had no option but to co-operate in
implementing the planning permission by entering a s.278
agreement
• It was unreasonable for a highway authority, whose road
safety objections have been rejected on appeal, to
maintain its view when this is inconsistent with the
Inspector’s judgment
79. Section 38 Agreements
• Section 38 Highways Act 1980
• Used where highway constructed as part of a new
development
• Local highway authority can enter into legal
agreement with developer to adopt highway as a
public highway and maintain at public expense
• If highway satisfactory, highway authority adopts
– Liability of developer ceases & highway authority
takes over all future responsibility
80. Ongoing maintenance costs
R (Redrow Homes Ltd) v Knowsley MBC (2015)
• Ongoing costs of maintenance after adoption can
lawfully be included in a S38 Agreement
• Agreement can provide for the payment of sums by
the developer to cover maintenance of the highway
into the indefinite future
• Decision increases significance of s.38 agreements
81. Section 37 Highways Act 1980
• Alternative procedure for developer to secure
adoption of highway/maintenance at public expense
• Procedure:
– Developer gives notice of intention to dedicate
road as highway maintainable at public expense
– Council can object on grounds that highway “will
not be of sufficient utility to the public”
– Matter considered by Magistrates Court
82. Section 37 or section 38?
• S37 allows developer to avoid payment of future
maintenance costs following decision in Redrow
• S37 application may not be successful, e.g. if cul-
de-sac:
– Costs implications for developer if highway remains
private
– Lack of certainty for future purchasers/occupiers
• S38: greater control for highways authority
