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The South West Specialists

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Section 106 negotiations - A new tool

April 2013 saw them insert two new sections in to the 1990 Town and Country Planning Act which provides the developer with the opportunity to make an application to the Local Planning Authority (LPA) to review the viability.

The aim of such an application is to review the level of affordable housing to be provided within the scheme.  As part of an application, which takes the form of a written request, a viability assessment will need to provided showing why the scheme is not viable.  This assessment can either be new or a review of a previous assessment if undertaken as part of the original application.

The developer must provide a proposal to bring the scheme into viability as part of the submission.

It is then up to the LPA to review the submission and decide whether they agree with the evidence presented or wish to challenge.  If they do choose to challenge and negotiations cannot be concluded satisfactorily, the developer now has the right to appeal to the Secretary of State (SoS) to determine.

Once a decision has been made by the SoS, some pressure will be placed upon the developer to deliver as they will be expected to build all the remaining housing within a three year period.  If this does not prove possible then the level of affordable housing will revert to the original agreement or a new application must be made.

Unfortunately this policy does not assist all development sites.  For rural developers, if a planning consent has been granted under an exception sites policy, then they will be exempt from this procedure.

These regulations are for affordable housing only as the Government did release amended regulations in February 2013 allowing the modification of all planning obligations entered into before 06 April 2010.

We have Vickery Holman have experience in these Section 106 negotiations across the South West region.  For an initial free consultation to see if we can assist please contact Anthony Eke on 01752 273834.