Following Monday’s successful judgment Anthony Crean QC discusses it’s impact:
“This is an important case because it resolves a long standing problem, namely; what to do about half built consents which are oppressed by s106 obligations?
Take the following example: At time 1, permission is granted for 200 homes with a total s106 requirement to pay £10m for off site infrastructure which is to be progressively paid as the site is built out. At time 2, 100 houses have been built and £5m paid but the Law – policy – market conditions – landownership patterns – have since changed such that it is no longer necessary – desirable – possible – to pay the balance of £5m as the remainder of the site is built out.
S106A permits an application to be made to the Council to vary or discharge the payments but this is like asking a turkey to vote for Christmas. Councils will not generally agree to receive less than was promised when consent was granted and the present state of the authorities is hostile to a developer contesting such a decision.
This case now provides the answer. A fresh application identical to the first in every respect save that the s106 requirement is omitted as failing to comply with Regulation 122 of the 2010 Regulations. The Council must then make an assessment of the contribution against contemporary circumstances and the secretary of state will do so on appeal if the Council behave unreasonably.
The Hitchins case establishes that it is lawful to build out the balance of the site pursuant to the second permission (free from the oppressive s106 obligations) despite the fact that 100 houses have already been constructed on the site pursuant to the earlier permission.”
Download a copy of the Appeal decision here