10 things developers need to know about Section 76 Planning AgreementsMarch 13, 2017
1. What are planning agreements?
They are legally binding contracts entered into under section 76 of the Planning Act (NI) 2011 usually between a council and a developer.
2. When are they are required?
New development can place extra burdens on the existing infrastructure and resources in an area (such as volume of traffic). Councils may require developers to make some reasonable financial or practical contribution to the community to address impacts caused by the new development. For example, a developer seeking planning permission to build a new housing development may be willing to contribute to the cost of more community facilities in the area of the development.
3. At what stage are they entered into?
A planning agreement is a material consideration in considering an application and, therefore, should be completed before permission can be issued. The content of the agreement ideally should be agreed through the consultation period of the planning application with the relevant parties and planning officer. The planning agreement is usually prepared by a council’s solicitors and the applicants will usually be required to pay the council’s legal fees.
4. Who can enter into a planning agreement?
All legal estates in the application site (including any mortgagee) will need to be a party to the agreement. If there are mortgages over the site early negotiations with your bank are recommended as they will be required to be a party.
5. Who is bound?
Planning agreements bind successive purchasers of the application site. In some cases, the agreement may contain a clause so that certain landowners are not liable under the terms of the agreement, for example, the agreement may not be binding on owners and occupiers of individual dwellings. A planning agreement will be registered as a statutory charge and therefore any purchaser will made aware of the existence of the agreement when carrying out a search of the register.
6. Can you appeal against an agreement?
Planning agreements should always be between willing parties. Applicants do not have to agree to a proposed planning agreement. However, if the barriers to the grant of planning permission have not been addressed this may lead to a refusal of planning permission or non-determination of the application. An appeal may be made against the non determination or refusal of planning permission.
7. How are they enforced?
They can be enforced in contract in the courts, by a council invoking an injunction or by entering the land and carrying out the required works. Should a council carry out works they may recover from the persons against whom the agreement is enforceable any expenses reasonably incurred.
8. Can they be modified or discharged?
A planning agreement may be modified or discharged either with the agreement of all parties to it or by an application made to the council. A period of 5 years must elapse before an application to modify or discharge an agreement is made. The applicant may appeal if a council decides that the agreement should not be modified or has failed to give notice of the decision within the time for determination.
9. If I apply for to vary my planning permission will I need a new planning agreement?
If you make an application under section 54 of the Planning Act (NI) 2011 to vary your planning permission the planning agreement will also need to be varied to refer to the new planning permission. Again all parties with a legal estate in the application will be required to be a party.
10. Do I need expert legal advice?
There is no such thing as a straightforward section 76 agreement because they uniquely draw on land law and land use planning in a manner that is a trap for the inexperienced and can lead to immense financial losses if there is a mistake. Whether you are dealing with an existing agreement or negotiating a new one, it is essential to seek expert legal advice.
Please note that the content of this article is for information purposes only and advice should be sought from a professional adviser. Please contact our Planning and Environmental Team at Cleaver Fulton Rankin for further advice or information.
Kate McCusker, Associate Solicitor, Planning and Environmental Team, Cleaver Fulton Rankin, Solicitors.