Development management

The A In Section 106A

A is for…

There was an interesting planning appeal decision letter last week concerning a section 106B appeal against refusal of an application made under section 106A to amend a section 106 agreement on the basis that it no longer served a “useful purpose” (the statutory test in section 106A).

This post will look briefly at that decision but first I thought some legislative archaeology might assist.

Section 106 of the Town and Country Planning Act 1990 is of course the statutory successor of section 52 of the Town and Country Planning Act 1971. Under section 52, the commitments had no specific description but were treated effectively as covenants analogous to restrictive covenants given by a landowner to a neighbouring landowner but (unlike usual property law covenants) able to contain positive requirements enforceable against successors in title rather than just restrictions – and, as is the case under section 106, enforceable by the local planning authority.

The only statutory method for amending or removing commitments given within a section 52 agreement was to make an application to what was then the Lands Tribunal (now the Upper Tribunal (Lands Chamber)) under section 84 of the Law of Property Act 1925. In order for such an application to succeed, the Tribunal has to be satisfied (in summary – there are other tests which are less relevant for the purposes of this post) “that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Upper Tribunal may deem material, the restriction ought to be deemed obsolete”.

The section 84 process is slow, uncertain, outside the usual planning system and so on. When section 106 of the 1990 Act came into force on 24 August 1990 the only statutory process remained section 84 of the 1925 Act.

Then in the first of so many waves of amendments to the 1990 Act, along came the Planning and Compensation Act 1991, which came into force on 25 September 1991. The 1991 Act replaced section 106 with, basically, what we have now. Those commitments given by landowners on behalf of themselves and successors were the first time called “planning obligations”.

In those changes, the scope of what could be secured was expanded. Compare the original formulation of what could be secured via section 106 with what it became:

Original:

“(1) )A local planning authority may enter into an agreement with any person interested in land in their area for the purpose of restricting or regulating the development or use of the land, either permanently or during such period as may be prescribed by the agreement.

(2) Any such agreement may contain such incidental and consequential provisions (including financial ones) as appear to the local planning authority to be necessary or expedient for the purposes of the agreement.”

What it became:

“(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to … as “ a planning obligation ”), enforceable to the extent mentioned in subsection (3)—

restricting the development or use of the land in any specified way;

requiring specified operations or activities to be carried out in, on, under or over the land;

requiring the land to be used in any specified way; or

requiring a sum or sums to be paid to the authority (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically.”

[When we think about how the use of section 106 planning obligations to secure financial contributions has exploded over the last 30 or so years, it is worth comparing what is now section 106 (1) (d) above with what it replaced: section 106 (2) above. Was this intended at the time? An open question…]

Note also the reference to “by agreement or otherwise” in the first line of the changed version of section 106 (1). This opened up the possibility of the landowner entering into planning obligations by unilateral undertaking rather than just by agreement.

Alongside the reformulation of section 106 was the introduction of section 106A and B (from 10 December 1992), providing a procedure to applying to “modify or discharge” planning obligations in place of using the Law of Property Act 1925 procedure. As I know you know, section 106A allows an application to be made once at least five years have passed since the obligation was entered into – with an available appeal route (although it is worth noting that the Secretary of State can prescribe – very easily in legislative terms, simply a ministerial direction would surely suffice – a period shorter or longer than five years). An application may be made before five years have passed, but in those circumstances there is no right of appeal. If an application is made, the local planning authority has to determine either:

that the planning obligation shall continue to have effect without modification;

if the obligation no longer serves a useful purpose, that it shall be discharged; or

if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.

Section 106B provides for appeals to be made to the Secretary of State. (Interestingly, sub-section 106 (5) requires that before determining the appeal “the Secretary of State shall, if either the applicant or the authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose”. I interpret that as the parties having a right for any appeal to be determined bother than by written representations, i.e. by a hearing or inquiry).

What is meant by “no longer serves a useful purpose”? What did Parliament intend to connote by the use of those words? Was this just intended as a modernisation and abbreviation of the test in section 84 of the Law of Property Act 1925? Should this be treated as a “useful planning purpose” or will any useful purpose do? Those words “No longer”: What if the obligation never served a useful purpose? And why five years? Of course, given the lack of any other statutory route to amend section 106 agreements and unilateral undertakings, all of this has come under increasing scrutiny both by inspectors on appeals and by the courts.

I have been looking back today at Hansard reports of debates in parliament that led to the Planning and Compensation Act 1990 to see whether legislators gave any of this specific thought. It would have been good if they had done but I can’t see that they did.

All this is particularly topical at the moment, at a time where many schemes are stalled through lack of viability and where development may be able to progress if planning obligations previously entered into are modified or discharged to the extent necessary to achieve viability. The government of course (a) missed any opportunity during the course of the Planning and Infrastructure Act 2025 to reintroduce the section 106BA and BC procedure that we had between April 2013 and April 2016 to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable and (b) is still not exactly welcoming section 73 applications with open arms that serve as a vehicle to achieve that outcome (see Matthew Pennycook’s 18 December 2025 letter to the Planning Inspectorate) so, if the local planning authority is not willing to engage in such a renegotiation of its own volition, section 106A and B are the only game in town.

Which now takes me to that recent appeal decision I mentioned. This is a decision letter dated 20 January 2026 dismissing appeals by Hodson Developments and Chilmington Green Developments against the non-determination by Ashford Borough Council and Kent County Council of applications made under section 106A to make a total of 122 modifications to a section 106 agreement dated 27 February 2017 in connection with planning permission which had been granted for a large development including 5,750 homes together with commercial and other uses. Central to the inspector’s decision was the question as to whether the viability or otherwise of the scheme and the effect of an obligation and other obligations on viability, is relevant to whether an obligation serves a useful purpose.

The appeals have a long history, which I suspect is far from concluded. The position is not wholly clear but it seems that an initial application to modify or discharge various obligations was submitted in 2022 before the expiry of five years when the local planning authority at that time would have had a broad discretion as to whether to agree to the application (given that an appeal would not lie under section 106B in relation to such an application). After an initial judicial review that was settled, the applicant commenced a second set of judicial review proceedings, alleging that Ashford Borough Council and Kent County Council were wrong to conclude that viability of the development was not a relevant consideration under section 106A and that in any event in their consideration of the issue they erred in law. Following a renewal hearing in March 2022, the claim was held by Lieven J to be unarguable. On the specific point as to whether viability is a material consideration, she “remain[ed] unconvinced that it is not a material consideration”. However she considered that the councils had properly taken it into account. “I am not going to consider whether or not viability was legally a material consideration because that is a somewhat complicated point of law and would involve considering a number of previous cases. It is sufficient for the purposes of ground 1 that the local authorities in this case did consider viability with some care and detail…”

There was then a further application, presumably by which time the five years had expired, which was the subject of the appeals considered by the inspector (two appeal references – one for obligations in the agreement enforceable by Ashford Borough Council, the other for obligations enforceable by Kent County Council). Some of the requests for modifications were withdrawn but there was still a long list.

After an eight day inquiry the inspector (solicitor Grahame Kean) disagreed that the effect of an obligation and other obligations on viability, may be relevant to whether an obligation serves a useful purpose (see paragraph 33). He goes on:

“34. An obligation must itself be soundly based on established criteria, ie it must be necessary to make a development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to the development. If, say an obligation fails these criteria but requires some act unconnected to or at odds with the development, the obligation would be liable to be struck down as invalid. However, in a s106A application the question is different from the legitimacy of the obligation itself. As counsel for the Appellant accepted, the obligation must have been entered into for a planning purpose in the first place.10 It would be rare for the useful purpose not to be a planning one but as noted, the question under s106A is whether the obligation serves any useful purpose, not just a useful planning purpose.

35. The Appellant’s counsel claims that “in the present case, frustrating the development goes to the planning purpose”. Counsel might not have intended to refer to a deliberate attempt to frustrate a development as much as an objectively assessed outcome due to acts or omissions of local planning authorities. At any rate there is no evidence of any deliberate attempt to frustrate the development and if there were, s106A would not be the appropriate way to deal that scenario.

36. Furthermore, if a planning obligation is duly completed, although it may have the effect of “frustrating” the development in the sense that it prevents progress in the eyes of a developer unless and until certain acts are performed, and although ultimately circumstances may obtain such that it is no longer regarded (by some at least) as a viable project, that seems to me a consequence, and not part of the original purpose or reason for exacting the obligation in the first place.

37. The existence of an obligation, in the context of a development scheme, is to make development acceptable in planning terms. That is its quintessential purpose. The statutory criteria are simple and do not refer to the viability of the development. The obligations have a contractual nature, albeit statutorily based, which it is in the interests of the parties to be able to enforce, the one against the other, and subject only to limited exceptions set out in s106 that allow discharge or modification. Since they are limited exceptions that derogate from the principle of contractual enforceability, it also seems arguable that exceptions should be strictly applied.

38. An obligation can have a useful purpose of preventing development or further development until performed. This may make it inherently impossible, for financially viability reasons, to carry out or complete a development, but that does not necessarily deny the usefulness of the purpose in preventing a development that would otherwise be unacceptable in planning terms. Circumstances may throw light on whether the purpose continues to be “useful” but viability issues would not transcend the basic question of whether the obligation continues to meet any useful purpose.”

Faced with such a spread of requested modifications (including, in relation to affordable housing, requested modifications as to tenure requirements and delivery triggers), the inspector considered that the “evidence is not so clear and unambiguous as to persuade me that unless the obligations in the s106 Agreement were discharged or modified all as requested, the scheme would in fact be rendered financially unviable and unable to proceed.”

This may all be justified on the particular facts, I don’t know. However, standing back, if the inspector’s approach is that an obligation relating to, say, the provision of a particular percentage of affordable housing, still serves a useful purpose if the evidence were to show that unless that percentage is reduced (or for instance the tenure mix altered or the trigger delayed) the development will not proceed, and that with the modification there is every prospect of the development proceeding, resulting in actual provision of affordable housing (albeit a lower percentage than was initially promised), is this approach correct? And if so, where is there any common sense in it – where really is the “useful purpose”? – and what can be done? In a situation like this, rather than defer progress on development indefinitely, is the developer really to go back to the very beginning, to prepare and submit a fresh application for planning permission, delaying any delivery for many years and at frankly massive cost? The lack of any proportionate mechanism to reflect current economic circumstances, with any necessary protections, would be surely a scandal?

Simon Ricketts, 25 January 2026

Personal views, et cetera

If It’s Not One Thing It’s The Other

Cyber attacks.

Almost two months on, the incident on 24 November 2025 which affected an IT system shared by Westminster City Council, the Royal Borough of Kensington and the London Borough of Hammersmith and Fulham is still causing delays in the processing of planning applications.

Westminster City Council confirmed on 14 January 2026 that many of its functions continue to be impeded. As to its planning functions, it is currently relying on manual processes and is only “making decisions on those [planning applications] that don’t require public or external consultation”(so, not many at all I assume!). It states in a series of FAQs that section 106 agreements are not being completed and CIL liability notices are unable to be issued. I’m sure that this is stressful for those working within the organisation but imagine the knock-on implications for development and for those of us advising those developers affected!

Similarly, RBKC has confirmed that it is unable to start processing planning applications that are submitted. Some data has apparently been copied and taken – and one can only assume that this may include personal information that would be redacted from that which would otherwise be publicly available. I hope this doesn’t impede people’s willingness in the future to engage in sensitive planning issues.

I can’t see equivalent advice on Hammersmith and Fulham Council’s website as to any current implications for its service, but Planning magazine reported on 13 January 2026 that the council has said that while it shares “some legacy systems” with the affected authorities, it had been able to “successfully isolate and safeguard our network.”

This is of course not the first time that local government IT systems have been compromised like this. That Planning magazine piece references attacks on Tewkesbury Borough Council and Gloucestershire City Council in 2022. People may also remember a disruptive attack on Hackney Council’s system in 2020 and there was also one on Redcar and Cleveland Council that year which is reported to have cost the council over £10m.

I’m sure this is all front of mind both for existing councils’ IT teams and for those planning for the move to unitary authorities. I just wonder if the associated business risk is being fully factored in by developers and investors. Does their insurance cover losses caused by resultant delays in receiving planning decisions? And what if a similar incident were to affect the Planning Inspectorate for instance? What back-up plans do organisations have?

And, finally, a point not directly related to any of this but relating to local government IT systems. Are the resources being made available to make sure that local government reorganisation includes full integration of authorities’ digital services? Search for a planning application on Buckinghamshire Council’s planning portal for instance and almost six years on you still undertake a memory test as to the geographic boundaries of its three former constituent authorities…

This is the 500th Simonicity post. Subscription is still free and, once we finalise the planning, subscribers should be receiving an email before too long now with details of a special event that is being planned to mark the blog’s tenth anniversary in June.

Simon Ricketts, 17 January 2026

Personal views, et cetera

Consultee Consultation

Consultation deadline approaching: responses are due by Tuesday 13 January 2026 to MHCLG’s 18 November 2025 consultation document on reforms to the statutory consultee system .

The RTPI has already published its response which makes some sensible points.

The current statutory consultees list is a long one. However, I hope the government won’t just focus on reducing the number of applications where input from statutory consultees is required, and on the timeliness of initial responses from statutory consultees. To my mind it’s as much about the quality of those responses (constructive, informed by an understanding of the application in question, with the potential for swift dialogue to address issues raised), about those statutory consultees having stable, clear, positively-minded guidance to manage potential applicants’ expectations) and about those statutory consultees being well-resourced with experienced, accessible, people.

Some quick and random thoughts:

The actions of Natural England in giving advice that has led in recent years to immediate vetoes on development in relation to e.g. the impact of nutrients or recreational pressure or indeed water abstraction issues on protected areas: why was advance notice not given, an “amber” warning, before such disruption was caused? Could solutions have been found faster? Is there going to be any sort of Parliamentary inquiry into how this was all allowed to happen? Will the impending work on environmental delivery plans mark any sort of turning point? We shall see.

As a former trustee of Theatres Trust I was disappointed to see the proposal that the trust should have its statutory consultee status removed. I can’t see what will be gained by this and indeed I see risks arising of unacceptable, or ill-advised, development slipping through the net. Theatres have high community value. TT always responds within the statutory deadline and in recent years (in 345 responses between 2022 and 2024) has only objected to one residential scheme (and that was only for seven homes!). Conversely TT’s responses have secured necessary changes to schemes to protect the operation of theatres. Isn’t this how the system is meant to work?

Conversely, I’ve heard depressing stories about the approach of, for instance, the Environment Agency on flood risk issues – objecting to applications for approval of reserved matters or the discharge of conditions on the back of changes in its flood maps. Memories perhaps of the nutrient neutrality vetoes affecting consented schemes that led to C G Fry & Son Limited v Secretary of State (Supreme Court, 22 October 2025) – issues of principle really should have been resolved by the time planning permission has been granted, rather than being re-opened by the backdoor.

Where are these thoughts leading? Maybe just to a conclusion that there is no “one size fits all” approach to this. With powers should come responsibility and so, as is indeed proposed in the consultation paper, the performance of every statutory consultee should regularly be scrutinised, including as to how constructively it is engaging with the application process – that is what will make the difference. And to have experienced planners within each local planning authority who can weigh consultee responses in the balance, pushing back and questioning where necessary.

Finally, it’s worth bearing in mind the potential impact of the draft NPPF once it is finalised. Paragraph DM3(d) of the draft:

“Consult statutory or internal consultees only where it is necessary to do so. Decisions on development proposals should not be delayed in order to secure advice from a statutory or internal consultee beyond their statutory deadlines unless there is insufficient information to make the decision or more detailed advice may enable an approval rather than a refusal.”

Simon Ricketts, 11 January 2026

Personal views, et cetera

SDO Speedwagon

This is about a vehicle for consenting major projects fast.

I don’t know if you have caught up yet with Sam Stafford’s and Zack Simons KC’s end of year chat: the #Planoraks Awards 2025 50 Shades of Planning podcast episode? In their analysis of the year just past, our small corner of it anyway, Zack awarded “Consent of the Year” to the Special Development Order laid before Parliament on 16 December 2025, due to come into force on 12 January 2026, which will authorise the construction of Universal’s proposed theme park and associated works at Kempston Hardwick, Bedford.

The relevant documents are worth reading, not just in case the same procedure may one day be appropriate for another mega-development, but to understand the structure adopted, in case elements can read across to other consenting processes.

Let’s start with the basics.

The Secretary of State has the power to make a special development order (“SDO”) under existing powers in section 59(3)(b) of the TCPA 1990. SDOs have been used to grant permission for various specified developments over the years. Recently, SDOs have been used, for instance, to grant temporary permission for inland border facilities and for providing facilities for the accommodation of asylum seekers. An SDO may only apply to the development of the land specified in the SDO. An SDO may (a) grant planning permission for a specified development or class of development or (b) provide for the local planning authority to grant planning permission in accordance with the provisions of the SDO. An SDO is made by statutory instrument which is subject to the negative resolution process i.e. it becomes law on the day the Secretary of State signs it and automatically remains law unless a motion – or ‘prayer’ – to reject it is agreed by either House of Parliament within 40 sitting days.

The SDO procedure is subject to the potential requirement for environmental impact assessment (with the same criteria applying as for usual planning applications). Unless EIA is required (in which case the environmental statement must be publicised for at least 30 days), there are no formal consultation or publicity requirements in relation to SDOs. It is for the Secretary of State to determine what if any, consultation and public engagement it would be appropriate in the circumstances to carry out. Similarly, there is no prescription as to the minimum level of detail to be provided in supporting documentation before the Secretary of State proceeds to make an SDO. MHCLG’s website just has this page with a brief summary of the background and links to recent Orders.

Universal’s proposal is vast. As described in the explanatory memorandum to the Order:

“The instrument grants planning permission (subject to conditions and limitations) for an Entertainment Resort Complex (ERC) and associated development at the former brickworks and neighbouring land at Kempston Hardwick, Bedford (‘the site’). The site is around 268 hectares, and the proposal includes theme park(s), visitor accommodation, retail, dining, sports and conference facilities and associated landscaping and utility infrastructure. It also provides improvements to the travel network including new entrances and exits from the A421, a bigger train station on the Thameslink / Midland Main Line at Wixams, and upgrades to Manor Road and other local roads.”

“The ERC would accommodate at least 8.5 million visitors a year and serve a domestic and international market. While there are several theme parks in the United Kingdom, there is nothing on the scale of the proposed development. The nearest similar development is Disneyland Paris.”

Universal submitted its formal request to MHCLG for an SDO on 26 June 2025, comprising a cover letter, ownership certificates, a guide to the planning proposal, proposed conditions, parameter plans, a series of proposed operative and controlling documents, a 19 chapter long environmental statement and various other documents including a planning statement, design and access statement etc etc – a package that will be familiar to anyone used to major outline or hybrid planning applications. There is a public engagement report setting out the extent of engagement undertaken to that point with relevant authorities and organisations and the public, starting with Bedford Borough Council (supportive throughout) and “strategically important bodies” from September 2022. Agreement in principle between the government and Universal as to the nature of Universal’s investment was announced in a written ministerial statement on 22 April 2025.

As set out in the explanatory memorandum, following submission of the formal SDO request in June 2025:

“Public consultation took place from 3 July 2025 for 8 weeks. The plans, drawings, Environmental Statement (ES) and other documents that accompanied the request for planning permission were published on Gov.uk and made available at local and national offices for in-person viewing and consideration. Representations were invited from the public as well as specific individuals and organisations notified directly by MHCLG. Those notified included statutory bodies, landowners and occupiers of property on, and next to, the site, railway operators, and interested or affected parties.

Just over 500 representations were received by the close of the consultation period; late representations were received and also considered. Most of the representations (circa 80%) were submitted via an online Citizen Space survey. Of the circa 400 Citizen Space survey responses, around 75% supported the development, around 16% objected, the rest were neutral. Two-thirds of online respondents said they lived locally.”

The Secretary of State has published a statement of reasons for the grant of planning permission. The statement summarises the results of the consultation undertaken and the extent to which measures have been incorporated or issues addressed in the Order, before reaching reasoned conclusions on the project’s likely effects on the environment, conditions, mitigation and monitoring measures. The national and local policy context is considered as well as the main considerations including: transport, highway safety and capacity; ground conditions, land stability and contamination; heritage; ecology and biodiversity; population and human health; flood risk, drainage and water resources; design, parameters and standards; climate change and resilience; economy and employment; landscape and visual effects, and loss of agricultural land.

The Secretary of State then reaches his overall judgement as to the level of benefit/harm, and weight, he applies to each issue, before concluding as follows:

“There are several harms which weighed against the Proposal. These include highway capacity, heritage, landscape and visual effects, loss of BMV land, noise, air quality, effect on services and impacts upon the living conditions for some local residents. Several matters were neutral. A range of conditions and limitations was proposed to mitigate the adverse effects as far as practicable. However, even after mitigation, it is almost inevitable that some harm would result from a development of this scale and nature. These adverse impacts, taken together, attract significant weight.

On the other hand, the Proposal would deliver many benefits, including the delivery of a world class Entertainment Resort Complex to the benefit of the UK tourism industry and to the local and national economies, on an unprecedented scale; provide a substantial number of jobs; re-use previously developed land; and remediate contaminated land. Highway and rail improvements that would enhance local transport infrastructure and, potentially, mitigate constraints on other development have also been committed to as part of the Proposal. Together, these benefits attract very substantial weight.

The Secretary of State concluded that, overall, the benefits would far outweigh the identified harms and that planning permission should be granted subject to the necessary controls set out in the Order.”

Finally, it’s worth looking at the SDO itself, snappily titled The Town and Country Planning (Entertainment Resort Complex, Bedford) Special Development (No. 2) Order 2025, to understand the nature of the various controls in place. There are many definitions! The Order is most akin to a Development Consent Order for a nationally strategic infrastructure project (although functionally only delivers planning permission rather than any other consents and approvals that may be required under other legislation). Schedule 2 sets out the various classes of development permitted by virtue of the SDO. Certain categories of works may only be carried out in connection with defined functionally associated works. The works may only be carried out in accordance with the 90 conditions and limitations set out in Schedule 3. Certain conditions and limitations require the “site controller” (which must initially be designated by Universal City Studios LLC before any authorised development may begin) to submit documents for approval or validation. There are procedures to be followed where the site controller wishes to modify any of the reference documents (set out in Schedule 1), controlling documents or any endorsement condition (i.e. a condition requiring any particular details to be approved or validated) and there are requirements as to publication of documents. The Order legislates for any overlap with General Permitted Development Order rights and with any development potentially to be carried out in connection with East-West Rail within a specified safeguarded area.

Formal approval for a project of this scale and complexity within six months or so of submission. Surely there are lessons to be drawn as to how in this country the consenting process is managed for other projects where significant public benefits arise?

Simon Ricketts, 3 January 2026

Personal views, et cetera

NB By way of explanation for those not of a certain age, REO Speedwagon are a US soft rock band that were formed, crumbs, 60 years ago. Responsible amongst other things for possibly one of the worst album titles ever: You Can Tune a Piano, but You Can’t Tuna Fish.

Announcements

Announcements from MHCLG are coming thick and fast ahead of this week’s budget and we had an announcement of our own at Town this week.

So, briefly, on 18 November 2025 there was:

Housebuilding around train stations will be given default “yes”

“Planning reforms to give greater certainty and strength for development around well-connected rail stations, including trains and trams, will be proposed through a new pro-growth and rules-based National Planning Policy Framework, which will be consulted on later this year.”

“The default “yes” will also apply equally across all local authorities, so that these benefits are seized across the country. The proposals will also include minimum housing density standards for these sites, expected to be exceeded in many cases, to make the most of sustainable growth opportunities for local housing, jobs, and businesses.”

This is all rolling the pitch for what will be in the consultation draft NDMPs next month (NB a convenient acronym – now that the NDMPs are to be non-statutory, I suspect that national development management policies may conveniently switch to national decision-making policies, perhaps less of a tongue twister or is that just me?).

What is “well-connected” and how will national minimum density standards be arrived at? We shall have to be patient and wait for the (large) pre-Christmas consultation package.

The announcement also included a separate proposal:

“Measures will also require councils to inform government when they’re inclined to block applications of 150 homes or more so ministers can decide whether to step in and make the decision instead, making sure that good housing projects don’t get lost.

Particular attention will be paid to those applications where a planning committee intends to refuse it contrary to the advice of planning officers.

Applications called in by ministers will also be sped up through the removal of the mandatory requirement for inquiries, with the option to consider matters through written representations before reaching a decision where appropriate.”

This is big and will require legislation. But it could have a significant effect. In my view the biggest effect would be to create a cooling-off period where a planning committee has resolved to refuse a scheme for 150 homes or more against officers’ recommendations. Not only would the risk of call-in arise before the refusal could be issued but that delay would also lead to the opportunity in practice for the application to return to committee, potentially with a different outcome.

Given that almost 80% of appeals determined by inquiry are currently successful (possibly even higher when it comes to major residential appeals), this surely makes huge sense.

See the fascinating statistics published by Appeal Finder from which I have taken these screenshots:

Written representations determination of some call-ins is an interesting idea – a speedier call-in procedure would be so much more effective (see the way that the Mayor of London uses his call-in power for instance) but how many applicants, looking at these statistics will get nervous as to the prospect of their precious scheme being at the mercy of the written representations process?

Also on 18 November 2025, a consultation paper Reforms to the statutory consultee system was published, with responses due by 13 January 2026. Sport England, The Gardens Trust, and Theatres Trust are proposed no longer to be statutory consultees, with replacement “mitigations” put in place. The criteria are proposed to be tightened for consultation with seven national statutory consultees (see Anne1 for details): The Environment Agency, Natural England, Historic England, National Highways, the Health and Safety Executive, the Mining Remediation Authority and Active Travel England.

Lastly in terms of announcements, we at Town Legal seized that old 2010 concept of “open source planning” to publish our discussion document Simplifying & Standardising Section 106 Agreement Processes: Proposals for Reform which we were pleased to launch in the House of Commons this week through the auspices of the LPDF at an event sponsored by Mike Reader MP (and thank you Lord Charlie Banner for your supportive words too). What do you make of it? Do let us know. We are really keen to reduce the time it takes to conclude section 106 agreements, particularly in relation to small and medium sized schemes. I hope that MHCLG’s consultation package will touch on these issues as well. It is the unglamorous elements of the process that gum up the system, after all.

To quote always-glass-half-full Paul McCartney in that song from the Sergeant Pepper album: “It’s getting better all the time”. To quote John Lennon from the same song (maybe having seen MHCLG’ latest housing supply data on net additional dwellings – 6% decline in housing delivery from last year): “It can’t get no worse”.

Simon Ricketts, 22 November 2025

Personal views, et cetera

4 Key Asks For The London Housebuilding Support Package Consultation

Most chats this week have been about the 23 October 2025 homes for London policy note.

tl;dr summary: positive direction but concerns about potential complexities, uncertainties and as to whether it will all be in place speedily enough.

We’re all now waiting for the consultation to start “over six weeks from November” (fair play, at least no “by the end of Autumn” fudge).

There are plenty of detailed issues arising, and differing interests will want to re-prioritise the measures in different ways, but I thought I would set out four key asks that I have, which in my view should be specifically addressed in the consultation documents:

Should there be more focus on stalled sites that already have planning permission?

This is the lowest hanging fruit. And yet all we have (in paragraphs 33 and 34) is a reference to the potential for renegotiating previously agreed arrangements by way of deed of variation and discouragement as to the use of section 73.

This isn’t enough. I set out the current procedural constraints in my 18 October 2025 blog post London Stalling.

Procedurally, bar reintroducing section 106BA or, for a temporary period, amending section 106A to reduce the 5 years’ requirement, at the very least we need:

Specific encouragement for local planning authorities to accept developers’ requests to engage with the process of varying existing agreements where specific criteria (consistent with the direction of the policy note) are met, linked to some sort of oversight, monitoring and/or route for complaint where authorities refuse to engage (given that unless your section 106 agreement is at least five years’ old, or unless this is in the context of a section 73 application (of which more in a moment) there is no right of appeal on the part of the developer)

Not the current suggestion that the section 73 process “should no longer be used as an alternative means of reconsidering fundamental questions of scheme viability or planning obligations” but rather a proper recognition of the real challenge of keeping planning permissions, and associated planning obligations packages, up to date as against changing circumstances and the important role that section 73 plays in this. Attempts to make currently unviable schemes viable invariably involve an intertwined mix of scheme changes and changes to planning obligations. Section 73B, introduced by the Levelling-up and Regeneration Act 2023, is less useful as only the implications of the proposed changes are to be taken into account rather than considering the amended proposal holistically against the current development plan and other material considerations. This all needs to be connected up with the continuing problem that Hillside creates for amendments to projects (I was pleased to see Baroness Taylor confirm this week, on behalf of the government, in response to Lord Banner’s tabled amendment to the Planning and Infrastructure Bill, that the government will “explore with the sector” a “statutory role for drop-in permissions to deal with change to large-scale developments”. This is so important!).

Is late stage (as opposed to early stage) review necessary in relation to the proposed “time-limited planning route”?

In basic summary, this route is where a residential scheme can commit to at least 20% affordable housing with a 60/40 social rent/intermediate tenure split with planning permission issued by the end of March 2028. If the first floor of the scheme has not been built by 31 March 2030 (in the case of larger phased schemes, in the case of any phase where the first floor of buildings providing at least 200 dwellings has not been built by that date), “a late review will be undertaken once 75 per cent of homes within the scheme or the final phase are occupied to determine whether a higher contribution for affordable housing can be made”.

Why the late stage review mechanism in these circumstances, rather than the early stage review that is currently the case with fast track schemes that don’t achieve substantial implantation by the specified deadline under London Plan policy H5? Late stage reviews unnecessarily spook funders and lenders, leaving the eventual outcome too late in the process – and also having the public policy disbenefit of being too late to allow for any further affordable housing, that can be unlocked via the review, to be accommodated within the scheme. There is also inconsistency with paragraph 30 which suggests another approach for multi-phase schemes: “For multi-phase schemes, a review of the scheme will apply prior to the start of each phase for which the milestone in paragraph 27 has not been reached, to determine whether additional affordable housing can be provided in subsequent phases.”

Isn’t it better to keep things simple and follow, where possible, the existing mechanisms within policy H5, just with the thresholds temporarily reduced?

Are there unnecessary difficulties with introducing a viability test into the proposed CIL relief?

Permissions which are secured via the new time-limited planning route that commence after the relief is in place and but before December 2028 will qualify for at least 50% relief from borough CIL (NB is this 50% after reliefs and exemptions have been applied and what will be the calibration to work out the higher level of relief where the scheme is delivering more than 20% affordable housing?), but the relief would be “contingent upon meeting proportionate qualifying criteria to ensure relief is targeted at schemes which would otherwise remain stalled or fail to come forwards, with a lower relief applicable where the full available amount is shown not to be warranted.” This sounds complicated. With this hurdle in place, not only would the developer not know whether they will qualify for the relief until planning permission is granted and they receive their liability notice, but it means that the purported advantage with the time-limited planning route of not having to undertake viability assessment is illusory, because the work will be needed in any event to secure the CIL relief – and the requirement will surely be very hard to turn into workable legislative drafting – we know how difficult exceptional circumstances relief is to secure due to the various criteria and requirements built into that particular mechanism.

Are the proposed additional powers to be given to the Mayor enough?

Boroughs would be required to “refer planning schemes of 50 units or more where the borough is minded to refuse the application – this would be a more streamlined process operating alongside the existing referral threshold of 150 units which applies regardless of a borough’s intended decision, and would ensure that the Mayor was able to review whether the right decision had been reached in the context of the housing crisis.”

But there may well be cases where schemes are being held up at borough level, either pre-resolution or post resolution whilst for instance the section 106 agreement is being negotiated, and where securing planning permission by the end of March 2028 will be critical under this package of measures. Here, speedy intervention, or threatened intervention, by the Mayor could really help. So, for this time limited period at least, why not allow the Mayor to intervene at any time after the end of the statutory determination period in relation to any scheme comprising at least 50 dwellings? Otherwise, that absolute cut of the end of March 2028 for grant of planning permission will need to some flex built in to allow for the possibility of appeal etc.

I’ll confine myself to those four although I have others, and I know that you do too…

NB none of this is to be churlish as to the scale of the task that MHCLG and the GLA have before them. It is of course by no means easy to get this package right and to avoid unintended consequences.

Simon Ricketts, 1 November 2025

Personal views, et cetera

Commons Select Committee: Land Value Capture

Today’s Commons Housing Communities and Local Government Committee’s report Delivering 1.5 million new homes: Land Value Capture (28 October 2025) contains recommendations which are more wide-ranging than the report’s title would suggest: some practical and, one would hope, uncontroversial; others touching on some raw political nerves at MHCLG no doubt.

Starting with the latter, do turn to the “epilogue” which comments directly on what were at that stage just media reports as to the “package of support for housebuilding in the capital” announcement which the government and the Mayor of London issued on 23 October 2025. The Committee expresses itself to be “seriously concerned by media reports that London’s affordable housing target could be cut” and “the Secretary of State may be considering suspending local authorities’ powers to charge the Community Infrastructure Levy to address concerns about development viability. None of the evidence to our inquiry—including from representatives of developers—advocated abolishing CIL entirely as a means of addressing viability concerns. On the contrary, we heard that the Government should reform CIL to extend its coverage where it is viable.”

“The Ministry must continue its work with the Greater London Authority to deliver an acceleration package, so that London boroughs are delivering housing in line with their local housing need targets. In response to this Report, the Ministry must provide its assessment of how changes to London’s affordable housing target may deliver more affordable housing units, by increasing the number of new homes built overall. Any reduction to London’s affordable housing target must be accompanied by a clawback mechanism to ensure developers return a portion of their profits to the local authority, ringfenced for affordable housing delivery, if a development surpasses an agreed benchmark profit. If London’s affordable housing target is reduced and the number of affordable housing units delivered declines, the Ministry and the Greater London Authority must commit to reinstating the 35% target.”

Perhaps this epilogue is slightly premature, given the actual announcement proved only to be a prologue to a consultation process that will run “from November” (late November is my guess). Perhaps the Committee should hear further evidence on that back of the consultation material to be published – it is slightly odd to be responding just to a newspaper report, particularly given that the actual announcement has been made.

But that epilogue does point to the fundamental policy tension in the current economic environment: what matters most – affordable housing delivery by percentage, or by absolute numbers? See for instance its recommendation that the government’s “forthcoming reforms to its guidance on viability assessments must ensure developers reliably deliver on their agreed affordable housing commitments, with viability assessments only used to alter these commitments retrospectively in the most exceptional circumstances. To support this, we recommend that all local authorities in England must be encouraged to set a minimum percentage target for affordable housing in their local plan [NB what don’t?], with a ‘fast-track’ route planning route for developments which meet this local target.”

“Too often, site-specific viability assessments are used by developers to negotiate down affordable housing requirements in circumstances where this is completely unjustifiable. Affordable housing contributions are frequently the first provision to be cut following a viability assessment, even where a developer may be making other significant contributions through Section 106 agreements and CIL. In areas with high land values, viability assessments should only be used in this way in very exceptional circumstances. Currently, not all local authorities have their affordable housing requirements clearly set out in local policy. Greater clarity from local authorities would provide developers with the right incentives to avoid lengthy viability negotiations, and ensure more applications are meeting local affordable housing requirements from the outset.

As part of its ongoing review of the viability planning practice guidance, the Government must consider how different types of developer contribution could be re-negotiated following a viability assessment, to protect affordable housing contributions. The Government must also update national policy to encourage all local authorities to set a minimum percentage target for affordable housing in their Local Plan for all major developments that include housing. This figure should be based on a local need assessment for affordable housing in each local authority, with particular regard for the local need for Social Rent homes. Local authorities should be encouraged to offer a ‘fast-track route’ for developments which meet the local affordable housing target, by making those developments exempt from detailed viability assessments and re-assessments later in the development process. This would encourage developments with a high percentage of affordable housing and speed up the delivery of housing of all tenures.

The Government must continue to develop its proposal to publish indicative benchmark land values to inform viability assessments on Green Belt land across England. The Government must publish different benchmark land values for each region of England, to reflect variation in land values. The Government must also ensure that the viability planning practice guidance contains clear advice on the “local material considerations” that would warrant local adjustments. The Government should continually review the effectiveness of the policy and consider how it may be extended to development on land that is not in the Green Belt.”

On land value capture itself:

“There is scope to reform the current system of developer contributions in England to capture a greater proportion of land value uplifts from development to deliver affordable housing and public infrastructure. There is a compelling case for such reforms—especially in the context of a deepening housing crisis and with public finances currently under strain. However, a radical departure from the Section 106/Community Infrastructure Levy (CIL) regime, which currently constitute the existing mechanisms of land value capture in England, would risk a detrimental impact on the supply of land in the short-term. We recognise that this would be disruptive to the Government’s housebuilding agenda.

Reforms to land value capture should be iterative, starting with improvements to existing mechanisms. Therefore, the Government must immediately pursue the reforms to Section 106 and CIL outlined in the chapters below. These reforms must optimise the system’s capacity to capture land value uplifts and deliver infrastructure and affordable housing—particularly homes for Social Rent—in line with the Government’s wider policy ambitions. The Government must also trial additional mechanisms of land value capture in areas where there are significant uplifts in land value which current mechanisms may not capture effectively. Specifically, the New Towns programme discussed in Chapter 5 presents a vital opportunity to test new ways of financing infrastructure delivery on large developments and learn lessons for future reforms.

Any reforms to land value capture should also be considerate of the wider tax system, to balance public needs and equitable charges on development. To support this work, the Government should publish updated land value estimates, which were last published in August 2020. If the Government does not intend to do so, it must explain why it no longer publishes this data.”

In essence, the Committee sees any radical change as likely to be disruptive to the government’s current agenda. Instead, it is recommending a number of changes which in my view are “no brainers”, for instance better resources for local planning authorities and looking to simplify the approach to section 106 agreements and to CIL:

Reforms to section 106 agreements

“There is a strong case for the introduction of template clauses for aspects of Section 106 agreements across England, as was recommended by the National Audit Office and others. Templates would allow local authorities to focus negotiations on site-specific factors rather than legal wordings. Template clauses would also allow for greater standardisation and clarity of requirements across all local authorities, and in turn reduce the workload of local authorities and Small and Medium-sized Enterprise developers.

As part of the site thresholds consultation that will take place later this year, the Ministry must seek views on how standardised Section 106 templates could most effectively streamline the negotiation process across sites of all sizes. Based on the consultation responses, the Ministry must work with the Planning Advisory Service to develop a suite of Section 106 template clauses and publish these within six months of the consultation closing. Alongside their publication, the Ministry must also update its guidance to local authorities on Planning Obligations to encourage local authorities to adopt these template clauses.”

I covered the same ground in my 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? Not only that, but my firm has also been working on an actual template draft for small and medium sized schemes and a specific set of proposals for ironing out the pinch points that currently exist at every step of the sway from arriving at heads of terms through to agreement completion. This was there to be grasped – it is a national embarrassment. We held a workshop on 30 September 2025, attended by a selection of thirty or so lawyers and planners from the public and private sectors, developers and representatives of industry bodies with MHCLG present in an observer capacity. If you weren’t invited I apologise but we were limited by the size of our meeting room! The draft output from the workshop will be released next month. If there is an organisation out there which is willing to make a larger space available in late November for a launch event please let me know.

Section 106 dispute resolution scheme

This may be why I write blog posts…. The Committee picked up on a reference I made in the blog post mentioned above to section 158 of the Housing and Planning Act 2016 which has never been switched on, allowing for a dispute resolution procedure to be able to be invoked where necessary during the course of negotiations.

“Local planning authorities across England have expressed concern that protracted Section 106 negotiations are causing delays to housing delivery. Drawn out negotiations do not benefit public outcomes and cause undue delays to development, which may impede the Government’s housebuilding ambitions. Whilst we recognise the Minister for Housing and Planning’s concerns that introducing a dispute resolution scheme may add complexity to the system, we believe the potential benefits to affordable housing delivery and unlocking stalled development outweigh this risk.

The Government should introduce a statutory Section 106 dispute resolution scheme, under the provisions of the Housing and Planning Act 2016. If the Government does not intend to pursue this, it should set out a detailed explanation as to why the Ministry has chosen not to implement the provision legislated for by Parliament in the 2016 Act. This should include setting out any specific technical or legal barriers to implementation which the Ministry has identified.”

Community Infrastructure Levy

Again, nothing earth-shattering. Rather, calls for more transparency as to which authorities are charging CIL and at what rates; widening opportunities for authorities to pool receipts (and recognising the opportunity that the reintroduction of strategic planning will bring) and greater focus on infrastructure funding statements.

On new towns:

The Committee calls on the government to set out where the funding is to come from (“The Government’s New Towns programme is likely to require billions of pounds of public and private investment over several decades, including millions from HM Treasury to establish development corporations during this Parliament”); greater use should be enabled of tax increment funding to fund infrastructure in cities and new towns. Specifically on the role that land value capture might play:

“There is significant potential to use land value capture as part of funding the proposed New Towns, especially on green field sites. However, we are concerned that the Government has announced substantial detail of the 12 potential sites without a planning policy to protect land value, contrary to the recommendation of the New Towns Taskforce. It appears that the Government has not yet established any delivery body to purchase land or enter agreements with landowners, which risks allowing developers considerable time to acquire sites for speculative development and immediately push up land values. The Taskforce said that, in the worst-case scenario, this could “jeopardise New Town plans”.

The Government must immediately conduct an analysis of Existing Use Values (EUV) on each of the 12 sites to maximise the capture of future land value uplifts, and develop plans for using appropriate mechanisms for land value capture on each site. This must include the option of development corporations using Compulsory Purchase Orders to assemble land where ownership is fragmented or negotiations stall. The Government must ensure arrangements for the purchase of land on New Towns sites are in place before it announces its final decision on locations by spring 2026.”

“The Ministry is right to prioritise New Towns which have the greatest potential to boost housing supply in the short-term, but its plan to “get spades in the ground on at least three new towns in this Parliament” does not match the scale of the Government’s housebuilding ambition. The New Towns programme can and must make a contribution towards increasing housing supply during this Parliament.

The Government must immediately clarify how housing delivery in New Towns will interact with local authority housing need targets. In its final response in spring 2026, the Government must include a roadmap for the New Towns programme, to show when each development corporation will be established, when development will commence on each site, and the estimated development timeline for each New Town.”

So will the government meet its 1.5m homes target?

“The housing sector is eagerly awaiting the Government’s Long-Term Housing Strategy, which it first announced in July 2024. Originally, this was to be published alongside the Spending Review in spring 2025. The continuing lack of a cohesive plan to deliver 1.5 million new homes has left the sector in the dark. We are also deeply disappointed that the Government has been unwilling to engage with us on the development of the Strategy, or provide any updates on its delayed publication, other than to tell us that it will be published “later this year”.”

“The Government can only begin to make significant progress towards its 1.5 million target once the sum of local housing need targets in Local Plans add up to that figure. Whilst the Government’s reforms to the National Planning Policy Framework seek to plan for approximately 370,000 new homes per year, local authorities will take several years to transition to this national annual target, as the currently Local Plans take seven years to produce and adopt on average. The Government has stated its ambition to introduce a 30-month plan-making timeline, but the relevant provisions in the Levelling-up and Regeneration Act 2023 to speed up plan-making have still not been implemented.

The Government must immediately bring forward its Long-Term Housing Strategy without further delay. It must set out an ambitious, comprehensive, and achievable set of policies that will deliver 1.5 million new homes by July 2029. The Strategy must prioritise implementing reforms to the plan-making system to move towards a 30-month timeline. The Strategy document must include an annex to provide the Ministry’s assessment of how many net additional dwellings each policy change will contribute towards annual housing supply, adding up to 1.5 million new homes over the five-year Parliament. If the Ministry is unable to supply this, the Government must make an oral statement to the House to confirm how many new homes it will deliver by the end this Parliament.”

There we have it. If nothing else, that will all spur us on with the work on the template section 106 agreements work and, related to that, I’m very keen to discuss how section 158 of the Housing and Planning Act 2016 might provide an effective, light touch, procedure.

Simon Ricketts, 28 October 2025

Personal views, et cetera

London Stalling

This one is about the current position with London (non) development and some thoughts about what procedural steps may be open to you if you are a London (non) developer with a planning permission for a scheme that is no longer viable to build out.

On 14 October 2025, Molior published figures for Q3 2025 construction starts and sales in relation to schemes in London with 25+ homes for private sale or rent. Apologies for the extensive quoting but their summary is clearer than anything I can write:

“Between 2015 and 2020, there were 60-65,000 homes for private sale or rent under construction in London at any given time.

Today, that number has fallen to 40,000 … and 5,300 of those are halted part-built.

With a surge of completions expected in 2026, Molior forecasts that just 15-20,000 new homes will be actively under construction on 1st January 2027.”

“London had just 5,933 new home sales in Q1-Q3 2025.

Sales rates are weak across all local markets and at every price point.

At prices up to £600 psf – the level at which most London owner-occupiers can buy – sales to individuals are virtually non-existent.”

“Build-to-rent completions are about to plunge.

Interest rates rose during 2022, then the Liz Truss budget pushed them higher.

This stopped new money from funding London multifamily development.

Completions are set to disappear after 2027 because construction starts fell in 2023 / 2024.”

“There were 3,248 private starts in Q1-Q3 2025.

London is now on track for fewer than 5,000 private construction starts in 2025.”

“Starts have been falling for a decade because sales rates and profitability have been falling for a decade.

Building Safety Regulator delays have made things worse in 2025.”

“Development is unviable across half of London.

Development costs are high, so it is unviable to build profitably in half of London – areas under £650 psf.

This is even if the land is provided free and there are no planning obligations like CIL and affordable housing.”

“London has 281,000 unbuilt permissions.

These numbers are private + affordable C3 permissions.

The numbers include outline consents, detailed consents and unbuilt phases of schemes partly under way.

Also included are projects successful at committee but still waiting S106 sign-off.”

Set all that alongside the homelessness and rough sleeping crises in London. The BBC reported yesterday that more than 132,000 households were living in temporary accommodation on 30 June 2025, up 7.6% from the same time last year. Aside from the human cost, this is of course at a huge financial cost for London boroughs: £740m ‘black hole’: London’s temporary accommodation crisis draining local resources (London Councils, 13 October 2025). And at the sharpest end: Number of people “living on the streets” of London increases by 26% (Crisis, 31 July 2025).

Whilst I try not to wear out my two typing-fingers commenting on press speculation about forthcoming announcements, I think we can assume that the government and the Mayor of London will soon be announcing various measures to try to turn this around or at least provide some sort of jump-start (note to government press team, I suggest that we are in “jump-start” rather than “turbo-charge” territory). See for example the Guardian’s 17 October 2025 piece London developers to be allowed to reduce percentage of affordable homes.

The spectre in the press pieces of some temporary reduction in developers’ threshold for qualifying for the Mayor’s fast-track (i.e. basically avoiding the need for formal viability appraisal and a late stage viability review mechanism if they can commit to a level of affordable housing which is usually 35%, with a policy-compliant split of affordable housing tenure types within that – see policy H5 of the London Plan for more detail) down to perhaps 20% is being seen by some as amounting to an actual reduction in the amount of affordable (and particularly socially rented) housing that will be developed. But this analysis is unfortunately wrong: very few schemes are currently proceeding with 35% or more affordable housing. Viability appraisals either agreed or accepted after scrutiny on appeal (this is not developers cooking the books) are already coming out at way less than 20%, let alone 35% (which is why simply reducing the threshold alone wouldn’t be enough). See for instance the inspector’s decision in relation to the Stag Brewery appeal (summarised in my 4 May 2025 blog post (7.5% affordable housing) and the 29 May 2025 decision letter in relation to a proposed tower block in Cuba Street (16.6% affordable housing). Nor is this a purely London phenomenon, if you recall last month’s Brighton Gasworks decision (summarised in my 27 September 2025 blog post) (zero affordable housing).

20%, plus the other measures being whispered about such as increasing subsidies for socially rented housing and/or allowing councils not to charge CIL, may tip the balance so as to turn some non-developers back into being developers again and thereby deliver more affordable housing (including socially rented housing) in absolute numbers (which is what counts after all) than is currently the case.

But what about the many schemes consented on the basis of 35% or more, that simply aren’t proceeding, at least beyond basic operations to keep the permission alive (see my 7 September 2025 blog post The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive)?

If we look to amend existing, unviable, section 106 agreements, no longer do we have the benefit of section 106BA, a provision introduced in April 2013 via the Growth and Infrastructure Act 2013, to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable, and then repealed three years later in April 2016. That provision unlocked various stalled permissions at the time. Is it too late, or too unpalatable, for an amendment to the Planning and Infrastructure Bill simply to reintroduce it?

Instead, the main routes are:

If the section 106 planning obligation is at least five years’ old, a formal application to the local planning authority can be made under section 106 A of the Town and Country Planning Act 1990 on the basis that the relevant obligation, unless modified, “no longer serves a useful purpose”. The test is expressed very generally which is unhelpful but the case would be that if the obligation is causing development, otherwise beneficial, not to proceed, it cannot be serving a “useful purpose”. There is the right of appeal to the Planning Inspectorate.

Seeking variation of section 106 planning obligations in the slip-stream of an application made under section 73 of the Town and Country Planning Act 1990 (an application, of course, for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted – and which is to be assessed against the current development plan and other material considerations). This was the route taken in the Cuba Street appeal I mentioned above. Full planning permission had been granted in December 2022. A section 73 application was made to amend the approved floor plans set out in the schedule referenced in condition 2 of that permission, to “provide an increase in the residential units from 421 to 434, and a reduction in the affordable housing (AH) provision from 100 (71/29 affordable rented to intermediate split as a ratio) to 58 (66/44 affordable rented to intermediate split as a ratio). In percentage terms the change in AH would be from 30.15 % to 16.6%. A consequence of these changes would be amendments to conditions 24 and 29, with respect to wheelchair accessible homes and cycle storage, given that they relate to the quantum of development subject to the original permission.”

Negotiating a deed of variation to the section 106 planning obligation, outside these formal procedures, without any recourse to appeal if the authority is resistant.

A fresh application for planning permission – utterly the nuclear option in times of cost, time and risk.

If there is indeed some form of announcement from MHCLG and the Mayor of London, I will be interested to see:

What is said about existing stalled permissions and any advice that is to be given to boroughs as to the approach they should take when approached by way of any of these procedural routes.

More generally, how will any announced (presumably temporary) relaxations with regard to the London Plan policy H5 threshold approach or any other policy requirements sit as regards section 38 (6) of the Planning and Compulsory Purchase Act 2004 (“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”)? Where there’s a will there’s a way but this is all another reminder, as if we needed it, that the process for reviewing and updating the London is so slow as not to be fit for purpose.

Oh and we still await MHCLG’s updated planning practice guidance on viability.

“London calling, at the top of the dial.

And after all this, won’t you give me a smile?”

Simon Ricketts, 18 October 2025

Personal views, et cetera

Hillside: Every Journey Starts With The First Step

Various people have asked me what I made of the amendment to the Planning and Infrastructure Bill that Lord Charlie Banner KC sought to introduce last month, seeking to lance the large boil that is Hillside (and if that word means nothing (1) lucky you, read no further, or (2) please read my 2 November 2022 blog post Running Down That Hillside).

The truth is that for a long time I couldn’t really face getting back into the subject, having failed to get traction for expansion of what became section 73B when the Levelling-up and Regeneration Act Bill was passing through its Parliamentary stages, and, before that, having sat behind Charlie at the Hillside Supreme Court hearing. The problem is real, but arriving at a workable solution is hard.

The amendment was as follows:

Huge credit to Charlie because, if nothing else, his amendment has put the issue back on the table with MHCLG. Baroness Taylor’s response in the debate on 11 September 2025 (see columns 1736 to 1741), contained the following passages:

“The Government recognise that the Hillside judgment and subsequent court decisions have caused concerns across the development sector, and the noble Lord was kind enough to send me some of the articles that have been written since, setting out which problems they are causing. It has made it more challenging to use the practice of drop-in permissions to deal with changes in development proposals for plots on large-scale residential and commercial development in response to changing circumstances.”

“We want to ensure that large-scale developments, where they need to change, can secure the necessary consents to deal with these changes effectively and proportionately. Unfortunately, we are not persuaded that Amendment 169 is the solution to Hillside for overlapping planning permissions. It is too broad in scope, and we must be absolutely sure that it would not undermine the integrity of the planning system. The long-standing principle that Hillside endorsed—that it is unlawful to carry out a development when another permission makes it physically impossible to carry it out—is a sound one. Decisions are made on the merits of the entire development proposal, and this amendment would allow developers to pick and choose what parts of an approved development they wanted to implement when they had a choice.

Similarly, we need to consider carefully the implications of legislating to deal with overlapping planning permissions and development consent orders in general terms. […]

“We want to ensure that there is sufficient flexibility to deal with change to large-scale developments. Clause 11 already provides a framework for a more streamlined and proportionate process to change development consent orders, but we also want to look at how the framework can be improved for planning permissions. We would welcome further discussions with your Lordships and the wider sector on this matter.”

All this stuff about considering carefully and further discussions is all well and good but perhaps the next step now should be to keep a number of planners and planning lawyers in a locked room until they have arrived at a refined version of the proposal which is watertight, legally and in public policy terms? What situations are people actually worried may arise? How can those outcomes be designed out?

I don’t want to be locked in the room but to start the discussion…

I think we need a bit of clarity as to how an authority actually states in the later permission or in a section 106 agreement that the lawfulness of past and future development carried out pursuant to one of those planning permissions shall be affected. This wouldn’t really appropriately be done by way of a planning condition. Nor would it be part of the operative part of the permission. A statement of the legal effect of implementation of the permission on another permission or permissions sounds more like a role for an informative (although to have such a declaration with legal effect within an informative would be unprecedented and something for subsequent purchasers’ solicitors to root around for in acquisition due diligence processes) but what are the guardrails, for instance:

(1) Surely the local planning authority shouldn’t by this route be able to affect the lawfulness of past development (the Supreme Court in Hillside ruled out any potential effect on the lawfulness of development which has already happened)?

(2) Surely a statement as to the lawfulness of future development to be carried out under an existing permission should only be possible where otherwise Hillside could cause a problem ie where there would potentially be materially inconsistent development? Otherwise this could end up being potentially more constraining, dependent on the attitude of the relevant local planning authority.

(3) How can the rights of a landowner with the benefit of at least part of the existing planning permission be protected rather than find out after the event that another party has secured a permission with a statement that (potentially without justification) affects that landowner’s ability to continue to rely on that earlier permission?

(4) What is to prevent the outcome being a planning permission which allows plainly inconsistent planning permissions to be built out free even of the traditional Pilkington constraints?

These are the sorts of real-world issues the final version of any legislative provision would need to cover off. The drafting will be gnarly…

Secondly, we need to think about what procedural mechanisms would need to be put in place. For instance:

Should the planning application form include a question asking if within the planning application red line area there are any planning permissions on which the applicant still wishes to rely alongside implementation of any planning permission granted pursuant to this application, warning that if this question is not answered correctly, the consequence of implementing the planning permission sought may be that previously granted planning permissions may no longer be able to relied upon?

Should Planning Practice Guidance direct a local planning authority, in determining an application for planning permission, specifically to consider in a section of its relevant officer’s report whether there are any existing planning permissions, which relate to some or all of the land the subject of this planning application, and if so whether or not it would be appropriate in planning terms for further development to be carried out under each of those permissions should this application be approved and implemented? And might digital planning, possibly even the Extract tool, make this less of a paperchase than traditionally it certainly would be?

It’s good that people are thinking about all this again. But it is darned hard! Mountain not hill.

Simon Ricketts, 3 October 2025

Personal views, et cetera

The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive

At a time when political focus is on the actual delivery of development projects, sadly much of our time as planning lawyers is still spent on keeping planning permissions alive ready for some future time when the particular project may be viable or otherwise able to proceed.

Planning permissions take an age to secure. My 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? referred to the May 2025 Lichfields research work How long is a piece of string? which found that the average determination period for outline planning applications for ten or more dwellings in 2024 was 783 days (up from 284 days in 2014).

So, maybe two or three years after scheme design freeze, the developer achieves its planning permission. By which time the market and/or technical requirements may have changed. If a full planning permission it may well have the default implementation deadline of three years, failing which it will lapse. If an outline planning permission it may well have the default reserved matters submission deadline of three years and a default implementation deadline of the later of five years from grant and two years from the last reserved matters approval to be secured.

The Planning and Compulsory Purchase Act 2004 tightened the screw on developers in two ways: first by removing the ability to use section 73 applications to extend the deadline for implementation and the submission of reserved matters applications (subject to temporary extensions first allowed for in the wake of the financial crisis and secondly in the light of the Covid pandemic) and secondly by reducing the default implementation deadline to three years from five.

I would argue that those measures have not served to increase or speed up the delivery of development, nor has it cleared the system of planning permissions which are no longer ever likely to be built out. All it has done is increase the extent to which developers, when they are not ready to proceed with development, are driven to carry out a limited implementation strategy simply to keep the planning permission alive.

After all, relatively minor works pursuant to the planning permission may serve to keep it alive; a list of “material operations” is included in section 56 of the Town and Country Planning Act 1990:

“(a) any work of construction in the course of the erection of a building;

(aa) any work of demolition of a building;

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d) any operation in the course of laying out or constructing a road or part of a road;

(e) any change in the use of any land which constitutes material development.”

However, care is needed, because the works carried out must not be in breach of any pre-commencement conditions on the planning permission (unless particular exceptions apply that have been established by case law). Often therefore, prior to works being carried out, it will be necessary to discharge various conditions or to vary them so as to allow for the implementation works to be carried out pre-discharge.

The Building Safety Act has given rise to an additional complexity in the case of “higher-risk buildings”, namely (in basic summary) buildings that are to contain at least two residential dwellings and which are either at least 18 metres in height or at least seven storeys. Under regulation 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, works can’t start to construction until building control approval has been secured, meaning that what may have been a straight-forward implementation strategy – perhaps digging a trench for part of the foundations of the building – may need to be ruled out given the current delays in the Building Safety Act gateway checks processes. (What is and isn’t determined to be a start to construction is left a little hazy, given that HSE guidance states that “carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work“).

Thought will also need to be given to whether the implementation works trigger any onerous section 106 agreement obligations, bearing in mind that the agreement is likely to have excluded certain types of preliminary works from the definition of “commencement of development” in the agreement.

If the scheme is in an area where a CIL charging schedule is in effect, thought will also need to be given to the extent to which a community infrastructure levy payment is triggered and for how much: is this a phased permission where CIL for the relevant phase will be triggered, or will these limited works trigger payment of CIL for the entire development?

Lastly, how to have a document trail that can be relied upon in the future to demonstrate that the planning permission has been kept alive? There are well-trodden strategies for securing a certificate of lawfulness under section 191 or 192 of the 1990 Act (the two processes entail different strategies, with different risks and indeed even sometimes very different application fees).

Does it all have to be quite like this? What public policy purpose is served? I was interested recently to learn that in Northern Ireland, for instance, the position is different:

First, rather than the long list of material operations within section 56 of the 1990 Act, section 63 (2) of the Planning Act (Northern Ireland) 2011: “development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—

where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;

where the development consists of or includes alterations to a building, any work involved in the alterations;

where the development consists of or includes a change of use of any building or other land, that change of use;

where the development consists of or includes mining operations, any of those operations.”

Decisions of the Planning Appeals Commission in Northern Ireland have determined that for instance the laying out of an access or the digging of a trench is not sufficient to meet this test.

Secondly, there is a specific procedure in Northern Ireland for renewing planning permissions: Regulation 3 of the Planning (General Development Procedure) Order (Northern Ireland) 2015 , with Department for Infrastructure advice as follows:

“As a general rule, such applications should be considered and refused only where: (a) there has been some material change in planning circumstances since the original permission was granted (e.g. a change in some relevant planning policy for the area, or in relevant highway considerations, or the publication of new planning policy guidance, material to the renewal application); (b) continued failure to begin the development will contribute unacceptably to uncertainty about the future pattern of development in the area; or (c) the application is premature because the permission still has a reasonable time to run. This is not an exhaustive list and each application must be considered on a case by case basis.”

Is this a better approach? What do we think?

Simon Ricketts, 7 September 2025

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