the Local Government Act 1972 and section 16 of the Greater London Council (General Powers) Act 1974. The Court of Appeal considered the scope of the powers contained in section 106 of the TCPA, which, in summary, enables “any person interested in land” to enter into a planning obligation restricting the development or use of land, requiring specific operations to be carried out on land or requiring land to be used in a specified way. The obligations can be enforced against the person entering into the obligation and successors in title.
The Court of Appeal agreed with the High Court and decided that the car-free obligations did not comply with section 106. The Court took the view that it would not be the use of a particular flat that the restrictions would prevent, but the use of the highway for parking, and an application for a parking permit could be made anywhere, on-line or by post, and not necessarily from the land to which the section 106 agreement applied. Accordingly, the obligations did not restrict the use of land or require it to be used in a specific way, so they could not be planning obligations for the purposes of section 106 of the TCPA. Not being a planning obligation, such a restriction could not bind successors in title. Had it ended there, RBKC would have been defeated and it would have led to the end of car-free restrictions in section 106 agreements. Fortunately for RBKC, the Court of Appeal agreed that the scope of section 16 of the Greater London Council (General Powers) Act 1974 (“GLCA”) came to its aid. As with section 106 of the TCPA, an agreement under section
16 of the GLCA may be enforced by a local planning authority against a party to the agreement with an interest in the relevant land, and also their successors in title. The difference is that section 16 requires the agreement to be made “in connection with the land”, which has a wide meaning and doesn’t require the
agreement to regulate the use of the land itself – that was found to be the problem with section 106 of the TCPA in this case. The Court of Appeal decided that there was a sufficient connection between the requirements imposed by the agreement and the proposed development, and that the car-free restriction was valid under section 16. RBKC’s challenge succeeded and the planning permission was upheld. The result is that, in London Boroughs, car-free restrictions can continue to be used and enforced, but only if the agreement is stated to be made under section 16 of the GLCA. However, a concern for London Boroughs will be that they are likely to face barriers to enforcing those provisions in existing agreements that are not made under section 16, because successors in title may not be bound.
Outside London, local planning authorities will not be able to impose car-free restrictions on new developments under section 106, and also not under section 16 as the GLCA does not apply outside London. Great news for developers outside London then? That seems to be the case, although watch out for local authorities circumventing the problem through their Controlled Parking Zone schemes.
Matthew Mainstone, Partner, Planning e: email@example.com
t: +44 (0)207 406 1636
THE BUSINESS Wedlake Bell hosts YEP panel debate “Is our housing market broken?”
Wedlake Bell hosted a panel debate organised by YEP (Young Entrepreneurs in Property) on 23 May 2017. The speakers from various walks of life in the property industry, including our own Kim Lalli (Senior Partner) debated the issues facing the housing market in the UK.
The speakers were: • Gareth Crawford, Head of Development at Home Group
• Emma Foster, Development Director at Mount Anvil
• Ben Frodsham, Associate at Indigo Planning
• Kim Lalli, Senior Partner at Wedlake Bell
The audience, clearly having strong opinions on the matter, asked tricky questions of the panel. There were a few key themes that came out of the
discussion, one being that we need to find a way to get young people more engaged and interested in issues of planning and affordable housing. The rise in construction costs and labour shortages were discussed at length as being of significant concern to the future of the housing market and the cost of building houses. Brexit was, as expected, at the
forefront of questions relating to how the property industry will cope/react in the next few years.
Despite the challenges faced by the housing market, some positive themes came out of the discussion, such as early evidence of British manufacturers and developers finding innovative ways to be competitive in the construction industry. There were also suggested solutions for alternative land uses that could provide the additional space needed to build houses.
A lovely sunny spring evening allowed the discussions to continue long after the debate officially ended with networking on the terrace at Wedlake Bell.
Katherine Keenan, Solicitor, Construction e: firstname.lastname@example.org
t: +44 (0)20 7395 3097
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