Do PCs have the powers to negotiate money to change hands between them and builders in lieu of a Section 106 Agreement?

Question

We bought a new build off plan that is right next to a open space.  Literally an inch away.  There was a condition of planning that the area be landscaped and maintained by the builders for a number of years.  The Parish Council negotiated a.£10,000.00 payment to them to allow the builders to walk away from the Section 106 Agreement of landscaping the area.  It has become an area of nuisance to our home and now the current Parish Council are wanting to make it a football pitch.  It is in the middle of a housing estate, my kitchen window opens out on to it, and it has the main road through the estate running along side it.

Answer 1

Whilst Parish Councils can carry out such a negotiation to release a developer from their obligation the devil as usual is in the detail. Did your PC take title for this piece of land ( and responsibility for) in the deal? If so then it becomes an asset of the PC and I would argue an asset of the community. This is a prime case for the PC to consult fully with the community in depth, on what they would want and need and not what the PC decides the community should have. In which case your objections and suggestions should be voiced

Comments

The devil certainly is in the detail with this one I'm afraid.  No they didn't take title for the piece of land but they took some responsibility (very little).  The piece of land was what was being used as the office and yard area for the site.  Approx. 5 years later when the site was finished the builders left.  The Parish Council, when requested by a few of the adjacent residents, asked the District Council to issue a Breach of Condition notice.  The District Council obliged with the three letters.  The Breach of a Condition of Planning.  The serious Breach of a Condition of Planning.  And the serious Breach of a Condition of Planning enforcement action will be taken.  The last letter resulted in a letter from the builders stating and I quote 'we gave the Parish Council £10,000.00'.  Apparently the Parish Council had forgotten AS YOU DO.  When the District Council then wrote to the Parish Council informing them that as they had taken the money they were now liable to landscape the area as per the plan, despite not remembering what the £10,000.00 was for, every one of them all of a sudden had a lightbulb moment and remembered the 'gentlemans agreement' that they had made with the builders for the area not to be landscaped.  Being brutally honest with you we are now stuck with a house we cannot sell.  Along with the understanding that you have more protection when you are buying a pair of tights in Tesco, than you do a property when Parish Councils get involved.  Anymore thoughts??

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Aha! some extra light. There is of course no such thing as a "gentleman's agreement" in such matters. The council, by accepting the money from the builders, released said builders from their obligation to carry out the requirements of the planning relating to that section. Normally this would be done because the PC did not like the landscaping design and wanted to do it themselves usually to meet community needs better.
It would appear that they have not met this obligation but it does not mean that they can ignore it or change the original planning permission for landscaping without re-applying to the planners. Therefore whether they remember or not the community can demand that they landscape the area and nothing else.
If they want a football pitch then they will need to apply and residents can object to the planners.
By taking the money they accepted the responsibility.
We had a similar case where the builder had planned a play area in a small development but paid the PC extra so they could increase the size and garden of one of the dwellings. As we already had two large play areas another wasn't needed and the money was invested by the council in those areas. Any "deals "must be in the communities interest.

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If the PC didn't take title, who owns it?  Presumably the developer.

Answer 2

I am surprised your parish council could negotiate on s106 monies as any s106 monies in our Borough go to either the County or Borough Council and nowhere near parish level....  and will be used for infrastructure miles away from where the development is having an impact.

Comments

Don't forget this was 5 years ago I think before main councils did the money grab on such payments.

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Section 106 of the Town & Country Planning Act 1990 has been in force since er 1990!   I worked for a district council in 2006 and some of their S106 agreements went back to 1992.

Answer 3

The Section 106 is drawn up between the Local Planning Authority (Usually the Principal Authority) and the developer submitting the Planning application.  Anything the Parish Council does must meet the terms of the S106 agreement and the PC is not empowered to negotiate terms unless it is a participant of the agreement.  Personally I doubt that the S106 initially allowed the developer to walk away from the landscaping scheme in the agreement.  I would suggest getting hold of a copy of the original S106 to see exactly what is stipulated.  For the scheme to be ditched, I would have thought a supplemental schedule must have been added by the Principal LPA to the S106

Comments

Graeme I completely agree with you

Floyd I’d approach your District Councillor for help, if you don’t get anywhere FOI request both the Parish and District Council as even though it’s a long time ago they should have retained at least the minutes
I know of a case where the County Council agreed to waive £150,000 that would have benefited the Community without telling anyone locally and it only came to light when I issued a FOI request

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The S106 agreement is often on the public record for the planning application on the planning authority's website. What you need to see is the subsequent agreement between the parish council and the developer for the £10k. If it was undocumented, the original conditions are enforceable against the developer by the planning authority and the developer will need to recoup his £10k from the PC via the county court.

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I would check the original first as the Parish Council could be referenced in it.

Answer 4

I find this whole discussion utterly astonishing! I trust that those councils negotiating these deals have availed themselves of a solicitor with appropriate experience and expertise and that they have worked in tandem with their local planning authority.

Comments

No not at all.  Unfortunately we have fallen foul of a Chair of the Parish Council and a Clerk who both had a long and distinguished career in the Planning Department at, yes you've guessed it, the District Council Planning Department that issued the Planning Permission along with the S106 Agreements.  It's not what you know it's who you know at its finest I'm afraid.  Any help would be appreciated.

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"Who you know" should carry no special priviige - unless the Parish Council are referenced in the original S106 or a subsequent revision of it, they have no authority to draw up an additional agreement independant of the original S106.