Updated guidance on planning appeals

The Planning Inspectorate (PINS) has updated guidance on planning appeals and Section 106 Agreements. 

For written representations, the guidance states that “the appellant must ensure that we received an executed and certified copy of the planning obligation at the time of making their appeal.”

In reality this is likely to mean that a unilateral undertaking is required as with the pressures that Local Planning Authorities are currently under it is unlikely that they will be in a position to engage meaningfully enough to allow for the completion of a Section 106 Agreement prior to a written representations appeal being submitted. 

For hearings, and inquiries, the guidance that “you should send a draft version with your appeal form, and “the appellant should make sure that a final draft, agreed by all parties to it, is received by us no later than 10 working days before the hearing or inquiry opens”. Whilst the deadline for submission of the final draft remains the same as under the previous guidance, the submission of a draft along with the appeal is new. 

It is clear that the intention behind the updated guidance is to front load the appeal process in respect of the planning obligations, presumably with the idea that by submitting a draft s106 with the appeal documentation it is more likely that agreement will be reached within the requisite timeframes. Whether or not this will turn out to be the case is yet to be seen, as for instance the submission of a poor quality draft with the appeal documents is unlikely to move the dialogue forward quickly with the local planning authority. 

It is also worth bearing in mind that ultimately PINS decide the format for determining appeals. Applying for a hearing will therefore not allow for a circumvention of the requirement to submit an executed copy of the planning obligations unless there is robust justification for the hearing in the first place. Moreover, if PINS consider that an appeal should be determined by written representations when a hearing has been applied for you would be well served by ensuring that any negotiations over the section 106 agreements are as advanced as possible as technically the requirements for a written representations appeal will not have been satisfied. In short, it is worth instructing the lawyers early.

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