Legal update
Depending on how much attention is paid at application stage and whether the correct notices were served on third parties, it may not ultimately be possible to obtain s106 covenants from all those with interests in the land, but showing willing demonstrates good faith. Ultimately, covenants from all may be unnecessary in any case. Section 106 allows anyone ‘with an interest in land’ to covenant, so it is theoretically extremely wide-ranging – taking us into the realm of equitable interests in land. But the language of s106 is permissive. It is not a mandate for all those having an interest in land to covenant, as some councils believe; it merely enables them to do so lawfully and for their covenant to run with the land. That is a point which the council’s
lawyers will usually engage with constructively if they are presented with the circumstances and rationale for a party not covenanting. For example, the land not bound might be an insignificant de minimis area. Or it might be operationally insignificant to what the s106 covenant was concerned with achieving. A good example would be payment of money required before occupation; provided the development footprint land is covenanted, landscape areas or driveways could be regarded as insignificant. Another good example might be
the freehold owner of land where the applicant for development occupied under a long lease. Similarly, if an access road is unregistered or is owned by an unknown third party, time and trouble can be spent obtaining a covenant quite unnecessarily if the council can agree that the extent of the covenants being offered as sufficient. Ultimately, councils are required to work to a standard of reasonableness set out in quite clearly in caselaw.
Conclusion
With clear communication on policy requirements for suggested contributions – and early dialogue with the legal team supporting an application – it is possible to get to an agreed level of contributions, and to deliver them swiftly in the legal agreement.
Disclaimer: The above article is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.
November 2024
www.thecarehomeenvironment.com
Chat with us about your home’s needs today.
08000 546 546
washco.co.uk
n
Check out WASHCO’s library of free care home resources
washco.co.uk/free-care-home-resources
Oliver Bussell
Oliver Bussell, a partner at CooperBurnett LLP in Tunbridge Wells, has almost 20 years’ experience in planning law, including five years working in-house for Kent County Council as a planning and highways lawyer. Oliver’s planning law work focuses on section 106 agreements and undertakings at application and appeal stage, negotiating associated infrastructure agreements, varying planning consents, and obtaining certificates of lawfulness. He also advises on contentious planning matters.
When it comes to laundry. We care too.
You need reliable service and a provider that listens.
You need to trust your equipment.
You need WASHCO.
27
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48
