Legal update
Planning for care: key legal principles
Oliver Bussell, a partner at CooperBurnett LLP, discusses some legal principles in planning agreements
In care home developments of any scale, the requirements of scheme mitigation are dealt with via the local planning authority’s two main tools of development control – planning conditions, which are attached to the grant of permission, and planning agreements. These are made under section 106 of the Town and Country Planning Act 1990 and, uniquely, they allow positive legal covenants to burden successors in title – or ‘run with the land’, in layman’s terms. Most aspects of development are
regulated by condition, but s106 agreements are necessary in certain circumstances, such as mandating payment of money, provision of infrastructure on site, and requiring the use or designation of land in a specified way to meet a planning purpose. The first of these cannot be achieved by planning condition and is enforceable by a debt claim. The second and third have powerful tools of enforcement attached to them because the statute empowers the local authority to enter the site, carry out any works required by the agreement and recover the cost of doing that from the landowner.
This article focuses on the use of planning agreements in terms of policy considerations, the legal questions concerning what contributions local authorities can insist upon, and some of the legal formalities of planning agreements.
Lawfulness of requirements
Local planning policy is the usual starting point for the planning officer in assessing care schemes and deciding what planning conditions are necessary – as well as any s106 covenants. Planning officers lead discussions about the council’s requirements, with legal scrutiny of those requirements often not occurring until
November 2024
www.thecarehomeenvironment.com
Local planning policy is the usual starting point in assessing care schemes
the heads of terms have been debated and decided upon – and often even mandated by committee resolution. Of course, many of those requirements are mandatory for all development of a certain scale and there is no discretion – payments in mitigation of nitrate emissions are an obvious example. But for other contributions, care sector developers would be well advised to look beyond policy and towards the legal test for the justifiability of s106 agreements.
Until the Community Infrastructure
Levy (CIL) Regulations 2010 came into force, the need for s106 covenants for matters such as affordable housing or open space contributions were certainly debated at application and appeal stage. But rules for the lawfulness of requiring them was entirely policy centred. There was no legal test. That all changed with CIL regulation 122, which states: 1. This regulation applies where a relevant determination is made which results in planning permission being granted for development.
2. A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is:
a. necessary to make the development acceptable in planning terms;
b. directly related to the development; and c. fairly and reasonably related in scale and kind to the development.
The regulation 122(2) tests of necessity, direct relationship between the s106 covenant and the development, and proportionality in scale and in kind, have always been the subject of pre-application discussions, but almost entirely in the context of planning policy and the core strategy. The implication that a s106 agreement has been required which was not also a lawful reason for granting planning permission is not something which is commonly explored before an officer’s report is sent to planning committee. Yet the implication could be that a local authority has unlawfully taken into account a matter which it ought not to have done. That creates the risk of legal challenge. Regulation 122 arguments against s106 contributions are points I have been asked to raise and pursue at the outset of s106 negotiations and long after a committee resolution has been granted. Those have
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