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S 106 VARIATIONS

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S 106 VARIATIONS

Postby OPENSPACES » Mon Nov 27, 2017 4:22 pm

In 2003 a national developer built an estate in my Village and the landowner , District Council and Parish Council signed s106 agreement. This provided for some land to be given to the Community which was to be crossed by a path which the landowner agreed to dedicate as PROW under HA 1980 s25. Despite clear timescales being included in the agreement and my continually chasing the Council this never happened. Now some 14 years later the land has been formally passed to the PC whom I have again chased up. They tell me that the District Council are now applying for a variation to the agreement to make the path permissive. They wish to do this to avoid any maintenance responsibility whereas the PC want the option to close it if they wish. I am receiving conflicting advice about this process. Some say public consultation must take place whereas others say only the landowner can apply for a change. If that is the case is it the original landowner or the present ? If anyone has experience of the process could you please advise
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Re: S 106 VARIATIONS

Postby dls » Tue Nov 28, 2017 11:27 am

I do not know, but strongly supect that it is a planning issue determined using planning procedures, which should not require anything much more than the consent of the planning authority and the developer.

s106 agreements are, from distant memory, often varied.
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Re: S 106 VARIATIONS

Postby theycantdothat » Tue Nov 28, 2017 9:52 pm

What does the relevant part of the section 106 agreement say? The wording could amount to an agreement under section 25 HA 1980.
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Re: S 106 VARIATIONS

Postby OPENSPACES » Thu Nov 30, 2017 9:45 am

The exact text reads
15. PROVISION OF PUBLIC PATH LINK
15. 1 The owner for and on behalf of itself its heirs assigns and successors in title with the intention that the following provisions shall bind the land and every part of it into whatsoever hands it may come with further covenants that the owner will
15.1.1. Prior to the development on the northern site submit to the Director of Development for his approval (which shall not be unreasonably withheld or delayed) the proposed design specification and standards of construction (together to be known as the standards) of the Public Path link

15.1.2. Prior to the occupation of 50 dwellings on the Northern site complete the construction of the Public Path link in accordance with the proved standards and to the satisfaction of the Director of Development

15.1.3 Upon the issue by the Director of Development of a Notice of satisfaction (the issuing of which shall not be unreasonably withheld) to the effect that the public path link has been completed to their satisfaction dedicate the public path link to the public by entering into a public path creation agreement in the form attached hereto as Annexure 2 and pay the Council its proper and reasonable costs expended and using its reasonable endeavours in connection with the promoting of the Creation Agreement
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Re: S 106 VARIATIONS

Postby OPENSPACES » Fri Dec 01, 2017 3:08 pm

Not being legally trained I suppose my questions are
• Does para 15.1 mean that any of conditions listed in the ensuing paras must happen i.e. are non-negotiable and binding no matter who owns the land?
• The problem is that the processes listed in paras 15.1.1 to 15.1.4 did not happen and the Council now they are seeking to remove the obligation. Is that legally possible and if not what should I do ?
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Re: S 106 VARIATIONS

Postby tph » Mon Dec 04, 2017 4:22 pm

A S106 agreement is a legal agreement between the parties who are signatures. There is a legal obligation to meet the requirements of the agreement.

However these requirements can only be enforced by those who are party to the agreement. Similarly the requirements can be varied if all parties agree to the variation.
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Re: S 106 VARIATIONS

Postby theycantdothat » Tue Dec 05, 2017 5:04 pm

15. 1 The owner for and on behalf of itself its heirs assigns and successors in title with the intention that the following provisions shall bind the land and every part of it into whatsoever hands it may come with further covenants that the owner will

This provides that the obligations will bind all future owners of the land. It is not always the case that such a provision has the effect stated, but it does in the case of a section 106 agreement because sub-section (3)(b) says so and even if the actual agreement does not so provide. The practical effect is that an obligation imposed by a section 106 agreement is enforceable as if it were a condition imposed by a planning permission. An obligation may be modified or discharged by following the procedure set out in section 106A. So far as I can see from the Act there is no provision for anyone other than a planning authority to enforce an obligation. If both PC and DC agree to a discharge of the obligation there does not seem to be anything an individual can do to prevent it - though see below as to the specific point about public path creation agreements. If the DC is not a unitary authority I am not quite sure why it is worried about maintenance when it is the CC's responsibility.

15.1.1. Prior to the development on the northern site submit to the Director of Development for his approval (which shall not be unreasonably withheld or delayed) the proposed design specification and standards of construction (together to be known as the standards) of the Public Path link

15.1.2. Prior to the occupation of 50 dwellings on the Northern site complete the construction of the Public Path link in accordance with the proved standards and to the satisfaction of the Director of Development

15.1.3 Upon the issue by the Director of Development of a Notice of satisfaction (the issuing of which shall not be unreasonably withheld) to the effect that the public path link has been completed to their satisfaction dedicate the public path link to the public by entering into a public path creation agreement in the form attached hereto as Annexure 2 and pay the Council its proper and reasonable costs expended and using its reasonable endeavours in connection with the promoting of the Creation Agreement


Difficult to argue that the above is not a “public path creation agreement” as defined by section 25 of the Highways Act 1980 even if the section is not expressly referred to. Section 25(5) HA 1980 provides that: "Where a public path creation agreement has been made it shall be the duty of the local authority who are a party to it to take all necessary steps for securing that the footpath is dedicated in accordance with it." That raises the tricky question of whether a local authority can get out of the obligation by agreeing to cancel the agreement.
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Re: S 106 VARIATIONS

Postby OPENSPACES » Thu Dec 07, 2017 2:00 pm

So to summarise
The agreement is between three parties. This does not include any public participation. While the Council and PC have a requirement to act in the best interests of the public, they can if all agree seek a variation to down grade a public right of way to a permissive path.
One last question it appears from most paperwork I have seen that the whole process is geared towards the developer seeking a variation. In this case it is the Council who are seeking the variation despite the failure to enforce the original agreement being down to the their Development officer. I have chased this for years but with no action seeming likely the PROW section eventually latched onto the fact that the proposed path crossed land given to the public with a sum for ongoing maintenance and saw this as a way of getting out of the PROW vested maintenance duties. When pressed the PROW section wrote me as follows "I am trying to ascertain as to why the dedication of this footpath was requested. Did this arise out of the consultation period, to address an objection etc.? Would you happen to know the background to this request? Any information you could give me would assist me greatly". I replied saying I don't know the reason as it was your agreement. So my question is , does the variation come with any tests? I understood that it was that the planning obligation “no longer serves a useful purpose”. If so who determines what is useful? From what I can see the public can have no input into this debate.
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