Developers, landowners and local authorities need to be aware that time is ticking in relation to Sections 106BA, BB and BC of the Town and Country Planning Act 1990.
Under these provisions landowners and developer can apply to local planning authorities to modify or discharge onerous affordable housing requirements in Section 106 agreements. There is a statutory right of appeal against the LPA deciding not to modify the agreement.
This process was introduced three years ago by the government to try to progress developments that had stalled because of viability problems. However, the provisions were always time limited, although this limitation has not been widely publicised.
The ability to modify Section 106 agreements under Section 106BA, BB and BC will automatically be repealed on 30 April 2016. This means that from 1 May 2016 the LPA will no-longer have any power to determine modification applications, and neither will the Secretary of State have any power to decide appeals based on these sections.
Therefore, if you have a Section 106 agreement that needs to be varied under Sections BA, BB and BC time is of the essence. Applications must be submitted and determined, and any related appeal lodged and decided before 30 April 2016 otherwise the chance to benefit from these provisions will be lost. There are no transitional provisions currently being proposed by the Government and any application and appeal that remains un-determined by 30 April 2016 will simply fall away.
With the on-going problems with housing supply in England now does not seem to be an ideal time to repeal these useful provisions. The November Spending Review does suggest that the time limit for these provisions may be extended to 2018. However, at the time of writing, there is no draft legislation to effect this intention. We will have to wait and see whether such legislation will come to fruition before the current time limit expires and we shall update readers as and when any draft legislation becomes available.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.