Unnecessary Use of Section 106 Planning Agreements

Many local planning authorities (LPAs) seek to use Section 106 Agreements to tie worker dwellings and other buildings to entire farm units to prevent them being occupied or sold separately from the farm.  However, farmers should note that in many cases the use of a Section 106 planning agreement in this way is contrary to national planning policy guidance and planning law, advises Brian Dinnis of leading agents Acorn Rural Property Consultants.

Dinnis says that in the past, national planning policy made provision for tying agricultural dwellings to farms but that current best practice seeks to control the occupancy and use of farm dwellings by means of a condition.

“The starting point here is that legislation sets out that a Section 106 planning agreement may only constitute a reason for granting planning permission for development where it meets all of the following:

• is necessary to make the development acceptable in planning terms
• is directly related to the development
• is fairly and reasonably related in scale and kind to the development

National Planning Policy also states that planning agreements should not be used where a planning condition can be used to do the same job, and guidance on the use of planning conditions is also clear that the restricted occupancy of a dwelling can be adequately achieved by means of a planning condition,” adds Dinnis.

This issue was recently considered by a Planning Inspector in granting full permission for a second agricultural workers’ dwelling on a farm.  In this case, the LPA accepted that there was a need for a second dwelling and had granted outline consent subject to a planning obligation which would tie the dwelling to the unit using a Section 106 agreement.  A local plan policy even stated that Section 106 planning agreements would be used where appropriate to tie a new dwelling to adjacent farm buildings or to the agricultural land of the unit to prevent sale of any element separately without further application to the LPA.  However, the Inspector reasoned that if the requirement for the second full time worker to live on the unit changed in the future, the use of an agricultural occupancy condition would safeguard the continued occupation of the dwelling by agricultural or forestry workers.  The Inspector concluded that a Section 106 planning agreement was not necessary to tie the dwelling to the holding and, accordingly, granted planning permission for the dwelling.

“This case demonstrates that the stance that a number of LPAs take by insisting that applicants enter into Section 106 planning agreements does not meet the tests set out within legislation, policy and Government guidance and that farmers who are intending to make an agricultural worker dwelling application, or any other planning applications, where the LPA has or may raise the issue of a Section 106 Agreement should take appropriate advice before signing up to anything that would limit flexibility of management or the future saleability of the farm,” concludes Dinnis.  He also advises that in some cases it may be possible to remove an existing planning agreement where that is either no longer necessary or is contrary to policy.

Farmers who require advice on planning matters should contact Brian Dinnis on 01884 214052 or email briandinnis@acornrpc.co.uk

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Posted on January 15, 2013 In Planning Consultancy
By Brian Dinnis

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