Oliver Bussell, a partner at CooperBurnett LLP, discusses some legal principles in planning agreements
In care home developments of any scale, the requirements of scheme mitigation are dealt with via the local planning authority's two main tools of development control — planning conditions, which are attached to the grant of permission, and planning agreements. These are made under section 106 of the Town and Country Planning Act 1990 and, uniquely, they allow positive legal covenants to burden successors in title — or 'run with the land', in layman's terms.
Most aspects of development are regulated by condition, but s106 agreements are necessary in certain circumstances, such as mandating payment of money, provision of infrastructure on site, and requiring the use or designation of land in a specified way to meet a planning purpose.
The first of these cannot be achieved by planning condition and is enforceable by a debt claim. The second and third have powerful tools of enforcement attached to them because the statute empowers the local authority to enter the site, carry out any works required by the agreement and recover the cost of doing that from the landowner.
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