With the proposed changes to the NPPF in the pipeline, reversing the changes made last year by the former administration and increasing the opportunity for development in the greenbelt, an increase in planning appeals seems likely.  It is therefore worth noting that the Planning Inspectorate recently and quietly updated its guidance on planning appeals and the use of section 106 agreements.   

The changes do not relate to the substance of these agreements but to when they are prepared.  Planning obligations are so often the overlooked aspect of a planning appeal.  There can’t be many planning solicitors who haven’t been called in at the last minute, just before a site visit or the start of an inquiry, and asked to put together a hasty section 106 agreement or unilateral undertaking, along with emails pleading with the Planning Inspectorate’s case officer for an extension of time to complete the document.  It looks like that has now all changed.

The revised guidance imposes new deadlines for preparing section 106 agreements and undertakings, with different requirements for appeals being dealt with under the written representations procedure and those proceeding to a hearing or an inquiry:

• For written appeals “the appellant must ensure that we receive an executed and certified copy of the planning obligation at the time of making their appeal.”
• For hearings and inquiries the timing is different and the new guidance advises: “you should send a draft version with your appeal form and our start letter we will send you will tell you when you must send the final draft to us.”  It adds “there should be continuous dialogue between the parties before the hearing or inquiry about the draft planning obligation to ensure that the final draft is as good as it can be.  The appellant should make sure that a final draft, agreed by all parties to it, is received by us no later than 10 working days before the hearing or inquiry opens.”

These timescales come with a warning: “planning obligations received after the ….. deadlines will be taken into account only at the Inspector’s discretion. The Inspector will not delay the issue of a decision to wait for an obligation to be executed unless there are very exceptional circumstances.”

There’s no doubt that the new guidance significantly accelerates when legal agreements need to be prepared for planning appeals and it raises some very real practical issues:

• For inquiries and hearings, what exactly amounts to a first draft?  Unless there were discussions with the Council about this prior to the appeal being made this is almost certainly going to be the appellant’s version of a first draft rather than something that resembles a nearly agreed document. 
• While many applicants attempt it, getting busy local authority legal teams to engage in working up section 106 agreements before a planning application is approved in principle can be difficult. Getting them to do so when an application has just been refused is going to be even more difficult.  While not all planning appeals need a planning obligation, quite a number will.  As over 93% of all appeals are dealt with as written representations that is probably quite a lot of planning obligations having to be agreed before an appeal can even be submitted.  Getting those documents agreed and completed before a written representations appeal is submitted is going to be a tall order. 
• All of this has implications for the nature of the document itself.  The need to get planning obligations finalised early for written representations appeals will mean a much greater use of unilateral undertakings.  That will clearly have its benefits but there could be drawbacks too, especially if the document needs amending once the local authority gets around to engaging with it.  Ultimately it may be necessary to re-negotiate the document, which will be frustrating and time-consuming, and we don’t yet know how the Planning Inspectorate will react to changes agreed during the course of an appeal.

Attempts to improve and speed up the planning appeal process are welcome.   This particular change is likely to take some time to bed in and in the short term the Planning Inspectorate are likely to face some push-back from appellants