Rutland County Council Larkfleet £1.88m Loss Stephen Ashworth, Dentons, suggests a judicial review, compulsory purchase order, highways access for a site as "ransom"
Stephen Ashworth, partner at law firm Dentons, said the assumption that a section 106 agreement automatically transferred to a new consent appeared to be the main fault in this instance.
"This sort of mistake is mercifully rare in relation to section 106 agreements, but there are hundreds of planning consents where the same careless approach was adopted to conditions, with consents then being granted without really thinking about whether the original conditions needed to be repeated or cross-referenced," he said. "For large sites there should be a clause that applies the obligations to all new consents unless disapplied. An alternative would be to include key constraints in conditions as well – breaches of conditions are far easier to deal with than breaches of agreements."
Ashworth added that councils in Rutland's position could potentially try to extract their full section 106 entitlements via a judicial review of a decision issued in error, by seeking a compulsory purchase order on the site in question to help their negotiating hand or by using highways access for a site as "ransom".
http://www.planningresource.co.uk/article/1365307/rutlands-section-106-mix-up-serve-warning-councils
Stephen Ashworth, partner at law firm Dentons, said the assumption that a section 106 agreement automatically transferred to a new consent appeared to be the main fault in this instance.
"This sort of mistake is mercifully rare in relation to section 106 agreements, but there are hundreds of planning consents where the same careless approach was adopted to conditions, with consents then being granted without really thinking about whether the original conditions needed to be repeated or cross-referenced," he said. "For large sites there should be a clause that applies the obligations to all new consents unless disapplied. An alternative would be to include key constraints in conditions as well – breaches of conditions are far easier to deal with than breaches of agreements."
Ashworth added that councils in Rutland's position could potentially try to extract their full section 106 entitlements via a judicial review of a decision issued in error, by seeking a compulsory purchase order on the site in question to help their negotiating hand or by using highways access for a site as "ransom".
http://www.planningresource.co.uk/article/1365307/rutlands-section-106-mix-up-serve-warning-councils
