The Government has updated its Planning Practice Guidance to encourage speedy resolution of S106 Agreements and reduce resultant delays in the planning process. This follows a consultation on proposed changes to the legislative framework governing S106 agreements, potentially including setting stricter timescales for S106 negotiations and creating a dispute resolution mechanism to resolve these where timescales are not met.
The updates to the Planning Guidance include an expectation that
negotiations take place early in the pre-application process and
that these be concluded in time to allow decisions to be issued
within statutory timescales. These inclusions are welcome, although
I would not expect a sea-change from the current situation; the
expectation for statutory timescales to be met is sufficiently
caveated so as to allow wriggle room for parties struggling to come
to an agreement. And it is of course just guidance.
The devil is often in the detail of S106 negotiations. More often than not, delays arise following the resolution to grant a planning permission, with negotiation over the detailed drafting being the source of delay rather than disagreement over the principles set out in Heads of Terms.
The new guidance seeks to remedy this by promoting the use of standard templates and model agreements and clauses. Anything that brings additional transparency and consistency to the process must be viewed positively. It will though be important to ensure that this standardised approach remains sufficiently flexible to accommodate different funding and delivery models, which may not necessarily fit within identikit S106 structures.
Ultimately, I expect that we will need to wait for legislative change to see a real reduction in time taken for S106 negotiations. A renewed statutory framework which does more to encourage agreement within statutory timescales and provides an accessible and commercially realistic avenue for dispute resolution should significantly reduce delays arising from S106 negotiations.
In the meantime, the updates to the Guidance will hopefully help to encourage authorities and developers to get around the table as early as possible and get the details, not just Heads of Terms, agreed before applications are considered for approval.
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