A developer in Leicestershire has missed out on planning permission at Appeal for 33 dwellings because he failed to ensure that the s.106 Agreement for the site was signed by the owner of the land. The agreement has been signed by the developer, who had an option over the land, but who was not the freehold owner.
Although the Planning Inspector found that the development was likely to be acceptable on all other grounds, the fact that necessary mitigation had not been secured meant that the appeal had to be refused.
s.106 Agreements attach to and run with land. As such, they have to be signed by the legal owner of the land in question if they are to be effective. If the landowner does not sign the agreement, then the land is not bound and the landowner would be legally entitled to build out under the planning permission issued (or indeed sell it on to a new developer) without providing any of the planning benefits secured by the agreement.
Whilst the developer in question must be extremely disappointed, the appeal decision is a useful reminder to make sure you have your paperwork in order before the hearing!
An outline proposal for 33 homes on paddock land on the edge of a Leicestershire village could not be given consent despite a clear undersupply of housing, because a planning obligation to contribute to local services and infrastructure did not bind the landowner. The obligation was signed by the appellant who owned an option on the land but not by the landowner themselves. Because the planning obligation therefore failed to bind the landowner or any person with a controlling interest in the land to comply with its terms, the provisions made to local services and infrastructure were ineffective if the option was not exercised. In the inspector’s judgement this lack of contribution or mitigation would amount to circumstances where the harm would significantly and demonstrably outweigh the benefits of additional housing.