5th October 2020
Norfolk Homes Limited (NHL) submitted an outline application for planning permission to erect up to 85 dwellings, access, public open space and associated infrastructure. North Norfolk District Council (NNDC) granted the planning permission subject to a section 106 agreement for the provision of 45% affordable housing together with several financial contributions.
NHL later made two applications under section 73 of the Town and Country Planning Act 1990 (TCPA). Applications made under section 73 of the TCPA enable an applicant to vary planning conditions attached to a planning permission. NHL successfully obtained the approval of two section 73 permissions in 2013 and 2015. No deed of variation or further section 106 agreement was required by NNDC.
In 2018, NHL requested a certificate of lawfulness from NNDC to confirm the 2015 section 73 permission could be lawfully implemented without triggering the obligations under the section 106 agreement. The council issued a decision notice refusing this request. NHL issued a claim and successfully secured a declaration that the 2015 section 73 permission is not subject to any obligations in the section 106 agreement.
Whilst there were other issues discussed and considered by the High Court in this matter, the judgment serves as an important reminder that where a section 106 agreement only refers to a permission, it will not automatically bind subsequent section 73 permissions.
A deed of variation is required to tie the obligations in the original section 106 agreement to a new section 73 permission or this can be dealt with by including express wording in the original section 106 agreement to bind future section 73 permissions. Where the local authority does not take such steps, the development can proceed under the section 73 permission without compliance with planning obligations in the section 106 agreement.