Over Taylor Biggs

Sometimes, delays in negotiating formal Agreements under Section 106 Town and Country Planning Act 1990 lead developers to submit their own Unilateral Undertakings in the hope these will facilitate planning permissions.  In some cases, the delivery of a Unilateral Undertaking will provoke the local planning authority to negotiate a formal Agreement and, incidentally, enable the local planning authority to recover some legal fees and other costs in connection with its preparation.

In a case involving Swindon Borough Council's refusal to grant planning permission for sheltered accommodation, the Appellant had submitted two completed and dated Unilateral Undertakings under Section 106 providing for financial contributions.

Both Undertakings were in identical form but the first required payment to be made when planning permission was granted and the second when development actually began.

On Appeal, the Planning Inspector felt it was unclear whether both Undertakings would apply or merely one of them.  If one of them, it was unclear which had precedence.

The Appellant requested the Inspector to consider one or the other but the Inspector determined that this could be done, unless the position was clarified by a Deed of Variation. 

In support of the uncertainty, it was suggested that as both Undertakings had been completed and took effect legally, they would bind future owners.  As such, payment could be needed in both instances, namely the grant of planning permission and any subsequent commencement of development.

Two payments would conflict with Circular 05/2005, as the two contributions would be out of scale with the proposed development.

Frustratingly, from the developer's perspective, the Inspector chose to ignore both Undertakings.  It was therefore found that the developer was unable to deliver the financial contributions required to satisfy local plan policies.   Although the scheme was otherwise acceptable, the Appeal was refused.

This case highlights the need for careful drafting of Unilateral Undertakings and the possible benefits brought by a simple statement that the latest Undertaking takes precedence over any earlier Undertakings given in relation to the scheme or relevant development site.