Seeing the wood for the trees

A High Court ruling has issued an important ruling on the enforcement of s. 106 planning obligations. Mary Tate analyses the judgment.

The recent High Court case of PNH (Properties) Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1998 (Admin) has highlighted the importance of ensuring that all of the land that is to be the subject of s. 106 obligations is bound by those obligations.

PNH (Properties) Ltd (PNH) applied for an order to quash a decision dismissing an appeal against a refusal to grant planning permission. The proposed application site formed part of a larger woodland site owned by PNH. Planning permission for the building of two dwellings had been refused by the local planning authority on the grounds that it would be detrimental to the overall character of the woodland. 

On appeal, PNH submitted a unilateral undertaking (UU) under s106 of the Town and Country Planning Act 1990 to address concerns about the impact of the development on the woodland and surrounding area. The UU contained an obligation to deliver and implement a woodland management plan. The UU bound only the application site although it required activities to be carried out on the remainder of the woodland site. 

This led the inspector to conclude that there was no guarantee that the woodland management plan would be delivered. If the remaining woodland was sold into separate ownership, the local planning authority would not be able to enforce the woodland management obligation against any successors in title as the UU was not expressed to bind this land.

PNH applied to quash the appeal decision on a number of grounds including that the inspector had concluded incorrectly that there was no guarantee that the woodland management plan would be delivered and implemented because only the application site was bound by the UU. The High Court dismissed the application and held that the inspector's conclusion about the UU was correct. 

This case is a useful reminder of the need to ensure that all of the land that is to be the subject of s. 106 obligations is bound by those obligations. It is therefore important to identify from the very outset the extent of the land that needs to be bound by the s. 106 agreement in order to secure the necessary planning obligations. This may involve having to include land which falls outside of the application site. The correct area of land must also be shown on the plan attached to the s. 106 agreement. 

If any land that is to be the subject of s. 106 obligations is not owned by the applicant, the owners of the other land should also join in with the s. 106 agreement in order to ensure that their land is bound and that the obligations are enforceable against their successors in title. Failure to do so may result in a local planning authority being left with a planning obligation which it is unable to enforce.

Mary Tate is an Associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5624 or by This email address is being protected from spambots. You need JavaScript enabled to view it..