External body could be given powers to decide Section 106 disputes


An external body or qualified person could be given legal powers to determine Section 106 disputes between local planning authorities and developers under proposals unveiled by the Government.

The Department for Communities and Local Government (DCLG) has labelled the current statutory framework around Section 106 agreements – which can secure infrastructure funding from developers as a condition of planning permission – as unfit for purpose and the cause of delays to developments.

In a consultation running until 19 March, the DCLG is seeking views on what external organisations or professionals might be able to make a binding judgement on the parties involved in a dispute to help speed up the system and unlock developments.

Currently, Section 106 negotiations should be concluded within the statutory timeframes of eight weeks, 13 weeks for major development or a longer period agreed in writing between the applicant and local planning authority.

However DCLG officials say that 'clear feedback from the sector suggests that protracted Section 106 negotiations can cause significant delays to the planning application process'.

‘We consider that the current statutory framework provides neither sufficient incentives to conclude Section 106 negotiations promptly, nor effective sanctions where delays and/or disputes occur,’ DCLG officials added.

External advisers could be brought in when parties to the Section 106 agreement ‘cannot agree on the scale and scope of mitigation necessary to make the development acceptable in planning terms or when parties agree on the Section 106 “ask” but the process of completing the necessary agreement drags on beyond statutory or agreed timeframes’.

If it went ahead the new fast track system could be self-funding, with the resolution body charging fees for the service. The consultation does not state whether these fees would apply to both public and private sector parties.

DCLG officials acknowledge there could be a complication to this process as the terms of Section 106 agreement are closely linked to the planning permission, meaning the third party resolution body might need to determine the related planning application. The consultation document questions whether this is necessary and whether there is a way round the problem.

The move has received cautious support from council directors' body ADEPT. Simon Neilson, chair of the planning, housing and regeneration board at ADEPT, said: 'ADEPT welcomes the consultation on speeding up the Section 106 elements of the planning process.

'Ensuring a more effective and faster system of agreements with developers is crucial to unlocking new sites for the benefit of the community and our economy; there are already many good examples of this occurring right across the country. However, ADEPT would wish to see good growth, not growth at any cost.'

In a separate section the consultation also asks: ‘To what extent do you consider that the requirement to provide affordable housing contributions acts as a barrier to development providing dedicated student accommodation?’


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