Planning By Numbers

Onerous section 106 requirements can tip schemes into unviability, but new rules could see the sums adding up for more development projects.

Viability debates increasingly shape development: its size, quality and tenure. Getting the tipping point right, between demanding too much and securing too little, remains a fundamental challenge. Hardening in the residential market and the creation of a new viability appeal through the Growth and Infrastructure Act 2013 are changing the game.

Enduring power

Planning requirements agreed under section 106 of the Town and Country Planning Act 1990 are usually intended to secure critical infrastructure (including affordable housing). Reduced grant funding for housing and less debt funding for development have shone a light on the realism of some of these burdens. So too the wisdom of some land deals.

Once agreed, section 106 obligations have been tricky to unpick. The ability to ask for modification or discharge of obligations with a right of appeal to the Planning Inspectorate in the background only arises after five years (under section 106A(3)) - three years in some cases. This is not a "lock out" though - authorities cannot behave unreasonably in refusing requests made within the five years (R (on the application of Batchelor Enterprises Ltd) v North Dorset District Council [2003] EWHC 3006; [2003] PLSCS 267). There are, however, hurdles, including the requirement that obligations "no longer serve" a useful planning purpose.

Judgment calls

Applications to vary planning conditions or extend time for implementing schemes result in a new consent. They can provide an alternative way to renegotiate section 106 packages, but still remain subject to an overall judgment about planning merits. The question remains whether applicants have done enough to maximise viability and demonstrate need and whether shortcomings in provision deserve to be fatal in light of other benefits. A need for affordable housing will often outweigh the need for market housing, notwithstanding viability constraints, assuming that there is an adequate local housing land supply: see Dallow Road, Luton (APP/B0230/A/12/2183021, 23 March 2013).

Growth and infrastructure

Things are changing. Planning for Growth (ministerial statement, 23 March 2011) reflects government concerns about unrealistic burdens. It remains significant in its own right: the secretary of state's failure to refer to it when refusing permission was fatal in Oxford Diocesan Board of Finance v Secretary of State for Communities and Local Government [2013] EWHC 802; [2013] PLSCS 66. The housing strategy (Laying the Foundations, November 2011) took Planning for Growth further, setting objectives for unlocking stalled schemes. The Growth and Infrastructure Act 2013, which came into force on 25 April this year, is now intended to deliver this commitment.

In addition to "special measures" powers for underperforming authorities and changes to the highways, national strategic infrastructure...