Planning Agreement monitoring costs

27 February, 2015

Many readers will be aware that s106 Town and Country Planning Act 1990 Planning Agreements or Obligations often contain a clause obliging the developer to pay the council’s costs in monitoring compliance by the developer with the Planning Obligations.

 

This was challenged successfully in the case of Oxfordshire City Council v Secretary of State for Communities and Local Government and others [2015] at the High Court thanks to the new Community Infrastructure Levy Regulations 2010 (the CIL Regulations).

 

CIL Regulation 122 limits the use of Planning Obligations. It states that a planning obligation is only a good reason for granting planning permission if:

 

  • it is necessary to make the development acceptable in planning terms;
  • it directly relates to the proposed development; and
  • it fairly and reasonably relates in scale and kind to the development.

 

Similar guidance applied to planning obligations before CIL was created but it was only guidance. CIL Regulation 122 is law.

 

The court held that Regulation 122 imposes a high threshold. In this case the planning inspector (the planning application had been appealed) had concluded that the payment of a monitoring and administration fee to the council was not “necessary to make the development acceptable in planning terms” because monitoring and administration functions were already part of a planning authority’s remit. The High Court agreed.

 

Where the facts are different from this case, it may be a different conclusion could be reached by the court but clearly there will often be very good arguments for resisting such charges in future.