The Department for Communities and Local Government has issued a consultation on the speeding up the negotiation of section 106 agreements, including proposals for the introduction of a dispute resolution mechanism to address delay in such negotiations. The consultation forms part of the Government’s attempts to transform the planning system into a simpler, more transparent and streamlined process.
The negotiation of section 106 agreements can lead to substantial delay in the planning process, even following a positive committee resolution. The consultation recognises that the current statutory framework provides neither sufficient incentives to conclude section 106 agreement negotiations promptly, nor effective sanctions where delays and/or disputes occur. The purpose of this consultation is to seek to address this issue.
The Government intends to introduce primary legislation to address the issue of delay and to streamline the process. To do this, the Government is considering introducing a mechanism to bring resolution where the:
1. parties cannot agree on the scale and scope of mitigation necessary to make the development acceptable in planning terms; or
2. process of completing the agreement drags on beyond statutory or agreed timeframes.
The preferred approach of the Government is some form of binding determination that would be issued by an external body or suitably qualified individual; this would most likely be the Planning Inspectorate although the consultation does not confirm this. The intention is for the resolution process to be a fast-track service, funded through the imposition of fees. The consultation seeks views on the timeframe for such determinations as well as the level of fee.
The consultation rejects the notion of the “deemed” approval of draft section 106 agreements submitted with an application, on the basis that it could lead to refusals and skew negotiations. The consultation also rejects mediation, on the basis of its unsuccessful introduction in relation to the renegotiation of section 106 agreements on stalled sites.
The Government has confirmed that it will amend planning guidance to:
1. confirm that section 106 agreement negotiations should be concluded within statutory timescales;
2. set expectations of earlier engagement at the pre-application stage;
3. encourage greater use of standardised clauses to minimise hold up through drafting; and
4. set expectations for greater transparency about what has been raised and spent through the use of section 106 agreements.
This consultation follows on from numerous attempts by the Government to streamline the planning process in recent years. It is also hot on the heels of the Vacant Building Credit that was introduced into Planning Policy Guidance on 28 November 2014.
The consultation will run until 19 March 2015 and can be found here.
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