Forum: s106 query

Q. Planning authorities can now require section 106 contributions for even a single dwelling, following the recent High Court ruling in R (West Berkshire Council and Reading Borough Council) v Secretary of State for Communities and Local Government.

I have inherited a plot with permission granted and commenced in the 1960s, as shown by commencement and excavation certificates. I would now like to build a slightly larger house but would wish to avoid contributions for affordable housing and other section 106 costs. Would the fallback position of an existing implemented permission be a good defence against such demands? HS

A. The West Berkshire case is scheduled to go before the Court of Appeal in March and circumstances will change if the High Court's decision is overridden, but in my answer I will deal with the current legal position. Development Control Practice (DCP) 4.148, which looks at fallback rights, refers to two appeals involving similar circumstances - an extant permission that could be implemented with no planning obligations in place, and a policy change requiring financial contributions.

In one instance, relating to a case in east London, the appeal was allowed (DCS Number 100-052-796). The other, involving a site in Kent, was dismissed (DCS Number 100-051-181). While I cannot answer your question definitively, this section of DCP indicates that a fallback right should hold more weight if it is likely to be implemented. So if the 1960s scheme is unlikely to be completed, the planning authority would be taking a reasonable stance in requiring the financial contributions. John Harrison

Next questions

Q. I submitted an application 16 weeks ago. The council recently advised that the red-lined site boundary was incorrectly drawn. It has invalidated the application and restarted the clock for the eight-week determination period. Under what legislation is it permissible to restart the clock in such circumstances? The planning authority cannot provide an answer. DS

Q. My neighbours put in a planning application for front and rear dormers. This was rejected and they submitted an application for front dormers alone, which was approved. They then applied for a lawful development certificate for rear dormers with no front dormers. The total volume was 49.97 cubic metres and the application was approved. Work is now starting and comprises both front and rear dormers. The final combined volume of the dormers will exceed 50 cubic metres. Would this render the certificate invalid? Is the permission valid? RW

Please send answers or comments to casebook@haymarket.com by 9 December. We also welcome readers' new queries via the same address.

Edited by John Harrison casebook@haymarket.com


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