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Section 106 planning restrictions on “Car-Free” development

Ben Garbett examines current issues in relation to section 106 agreements and "car-free" development.

For several years now, local planning authorities have used ‘section 106 agreements’ to impose legal restrictions which are intended to prevent property occupiers from applying for parking permits in areas covered by Controlled Parking Zones (CPZs) to ensure new development remains “car-free”. 

These restrictions can interfere with work or home life, due to problems with commuting, the use of trade vehicles, or other personal circumstances (e.g. young children or disability).

Enforceability of car parking restrictions by s.106

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In a previous article entitled “Use of Section 106 planning obligations: restrictions on car parking”, I concluded that some of these s.106 agreements may not be capable of enforcement by planning authorities.

Enforceability of ‘parking permit-free’ development can be a particular problem in the Regions since planning authorities are not able to claim reliance upon the contracting powers bestowed by section 16 of the Greater London Council (General Powers) Act 1974.  But the issues can also affect the enforceability of existing agreements in the London Boroughs, if the correct legal powers have not been used.

Alteration of CPZ boundaries

These problems may be somewhat ‘historic’ in nature because not all authorities are reliant on enforcing permit-free development in this way. For example, the London Borough of Barnet Council, Bristol City Council and Brighton & Hove Council currently use their highways and traffic management powers to modify the geographical areas which are covered by CPZs instead. An individual’s entitlement to apply for a permit will depend on whether their place of residence is a street which is covered by the CPZ. Council’s will often need to charge developers (via a s.106 financial contribution) for the cost of modifying the relevant Order before permission is granted for new development. 

Problems with permits being incorrectly issued

The way these restrictions are intended to operate is that occupiers will become aware of the limitations before they take up occupation, but there are worrying signs that this is not always happening. It seems developers or letting agents may not be bringing these matters to light, as they should have, and strangely, many authorities do not check eligibility at the time a permit application is made. 

We are seeing an alarming rise in enquiries from occupiers who have benefited from the use of a permit (for what could be several years), but the local authority now says the permit was wrongly granted and is intending to revoke it. It appears the problem of permit revocation may be widespread, which begs the question why so many authorities are not routinely checking addresses against a database before a permit is first issued and/or renewed?

The consequences of revocation will sometimes be gravely serious for those affected and the sense of unfairness will be particularly acute for those who took up occupation innocently. Some of these authorities consider that they have the legal right to terminate the permit immediately. They point to ‘terms and conditions’ which apply to permit rights and say that the permit may be cancelled, and a penalty charge notice may be issued. In some instances, authorities are giving just a very short period of notice before doing so (in one case, just 2 weeks was given before the permit was taken away).

What should you do if you receive notice that your parking permit is to be revoked?

Regardless of whether a permit was wrongly issued, local authorities have an overriding duty to act fairly in accordance with the common law. In practice planning officers have plenty of room for discretion in relation to how they should deal with individual cases, and so they should consider giving a reasonable period of notice. A period of 6-12 months might be appropriate, depending on the circumstances. Anyone suffering from this kind of problem would therefore be wise to seek out legal advice, preferably in good time before the authority cancels the permit. 

Applications to lift parking permit restrictions

Councils will often cite the pressure of demand for on-street parking space, and attendant highway safety risks, as good reasons for wishing to maintain the status quo. However, in some areas up-to-date traffic survey data may reveal a lack of parking ‘stress’ needed to justify continuing restrictions. In such circumstances an application to remove the restriction might stand a good chance of success, albeit this may still be resisted by up-to-date sustainability policies seeking to discourage car-use.     

What should I check?

Individual cases vary, but it will usually be relevant to consider the following matters:

  1. What is the legal enforcement mechanism (i.e. by what method were the restrictions first imposed)?
  2. Are the restrictions capable of effective enforcement or is there some legal defect which may render this difficult and therefore will it be lawful for the council to refuse to issue a permit?
  3. Have the relevant local circumstances changed, and if so, is there sufficient planning merit for an application to have the restrictions lifted?
  4. Has the council given sufficient notice before seeking to revoke a wrongly issued parking permit?

Ben Garbett is a Planning Solicitor at Keystone Law. He can be contacted on 020 3319 3700 or by email This email address is being protected from spambots. You need JavaScript enabled to view it..

If you have any concerns regarding the points raised in this article, please contact Ben.

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