S.106 Monitoring Costs a thing of the past?
Unfortunately not! Despite the High Court case of Oxfordshire City Council v Secretary of State for Communities and Local Government and others 2015 which has confirmed that the payment of a monitoring and administration fee to the Council is not “necessary to make development acceptable in planning terms”, because monitoring and administration functions are already part of a planning authority’s remit, we have already found when challenging Councils and quoting this case, we are still meeting resistance.
Councils are now arguing that when asking for monitoring fees that these are not being requested as planning obligations under the s.106 but rather as an administrative fee to be treated in the same way as the payment of the Council’s legal costs and planning application fees.
However, the Oxfordshire case also implies that this not appropriate, the judge confirms “It seems to me that the Circular (05/05: Planning Obligations) and the Guidance (The Planning Obligations: Practice Guidance of July 2006) envisaged that the cost of essential administration, monitoring and enforcement would be met out of the authority’s own budget, not by charging the developer. An authority is able to incur expenditure incidental to its functions under section 106 by virtue of section 111 of the Local Government Act 1972”. He goes onto say “By section 303 TCPA 1990, the Secretary of State has a broad power to make provision for the payment of fees for the discharge of local planning authority functions. He has made regulations which prescribe fees for matters such as planning permission applications, reserved matters and discharge of conditions. It is significant that he has decided not to make provision for the payment of fees for the administration and monitoring of section 106 Agreements.”
It is therefore clearly implied that monitoring fees and other administrative fees should not be charged as a matter of course by Councils in any situation and attempting to do so falls outside of the Councils’ powers. Regardless of this, Councils have begun quoting the general power under s.1 Localism Act 2011 as justification for these fees and until such time as this justification is challenged at appeal or in the courts it looks like monitoring fees will remain a cost for developers.