Resolution of obligations disputes: Update 16 June 2016

Section 158 and schedule 13 allow for the secretary of state, following a request from an applicant or council, to bring in an "appointed person" to resolve issues holding up completion of planning agreements "if he thinks that the local planning authority would be likely to grant the application if satisfactory planning obligations were entered into, but not otherwise".

Under this measure, introduced during the Housing and Planning Bill’s parliamentary passage, the appointed person would produce a report recording any common ground and setting out recommendations on appropriate terms for an obligation. Once a report is issued and an agreement according with its recommendations is signed, the local authority could no longer refuse permission on section 106 grounds. Conversely, if the report recommends terms but the agreement is not signed within a certain period, the authority must refuse permission. Until the resolution process concludes, applicants cannot go to appeal.

The schedule states that applicants cannot make resolution requests if they have already lodged or instituted judicial proceedings, or the case has already been referred to the secretary for state for possible call-in. It adds that parties must co-operate with the appointed person and "comply with any reasonable requests to provide information or documents or to take part in meetings". It also paves the way for cost awards for unreasonable behaviour. Further regulations are expected to specify minimum and maximum time periods within which an application must be determined following receipt of the appointed person’s report.

The Department for Communities and Local Government’s February 2016 technical consultation suggested that the dispute resolution procedure should apply to any planning application, including small-scale proposals. Where a request is made for dispute resolution, the consultation paper suggested a short "cooling off period" of perhaps two weeks following an appointment to give the parties a final opportunity "to focus minds and resolve outstanding issues". Parties would still be able to come to different terms, but only within a limited time period.

Commencement: These provisions insert a new schedule 9A into the Town and Country Planning Act 1990. They will come into force on a date to be prescribed by regulations.

See the consultation document for further details on suggested timescales for the new process.