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An amendment to the Housing and Planning Bill has sought to introduce a section 106 dispute resolution procedure. The new resolution procedure was first suggested by the government early on in the Housing and Planning Bill consultation process and again when the government's 'Fixing the Foundations' paper was released in July 2015. In February 2016 the government launched its consultation document 'Technical Consultation on Planning' (the 'Consultation') which, amongst other things, seeks responses to a number of points relating to the introduction of the dispute resolution procedure.
The dispute resolution process is designed to assist in progressing the negotiation and agreement of planning obligations between local authorities and applicants where the parties have failed to agree terms. Planning Minister, Brandon Lewis, has indicated that this a key process designed to "speed up section 106 negotiations and help housing starts to proceed more quickly".
It is intended that the dispute resolution process will be provided by an independent body on behalf of the Secretary of State. This body will consider requests sent to it and appoint people, as necessary, to resolve outstanding matters between the parties where the dispute resolution procedure has been requested.
The dispute resolution procedure will apply to any planning application, regardless of the size and complexity of the application, where the Secretary of State considers that the local authority would likely grant planning permission if a satisfactory Section 106 Agreement was in place.
The dispute resolution process can be initiated at the request of the applicant, the local authority, or any other person as set out in the regulations. The process is initiated by making a request to the Secretary of State, and the present timescales for the determination of planning applications are considered to be the most appropriate time limits before the process can be triggered. The finer details, as regards the making of the application, are to be set out in the regulations. Early indications suggest that applications should be made in writing, providing full details of the application, a draft section 106 agreement and a statement setting out the matters in dispute. For the avoidance of doubt, the new process will only apply to those cases where the Secretary of State considers that the local planning authority would be likely to grant planning permission if satisfactory planning obligations were in place. The new process will not apply to a planning application which is being appealed or is before the courts, or has been called in by the Secretary of State.
It is anticipated that there will be a 'cooling off' period of two weeks from the date a request is made as an attempt to give the parties the opportunity to resolve the outstanding issues.
The appointed body is required to prepare a report which records any agreed terms between the parties and recommends appropriate planning obligation terms. The current proposals suggest a four week timescale for producing the report, but this is to be explored through the Consultation. Both parties are required to comply with the Secretary of State throughout the process. It is proposed that the fees will be shared between the parties, with the opportunity for the appointed body to award costs where either party does not engage in the process or one party is found to have acted unreasonably. Again, the details are to be set out in the regulations following the Consultation.
Until the resolution process concludes, the applicant may not appeal nor may the local authority refuse permission. In the case of any error in the appointed person's report it is proposed that there will be a mechanism to allow for rectification. The time frames for entering into the section 106 obligations following the report are to be determined through the Consultation, but it is anticipated that a period of two to four weeks would be appropriate. It is envisaged that the regulations will allow for different time periods depending on the circumstances.
At this stage the proposals for a new dispute resolution procedure are limited in detail, and it will be the subsequent regulations which will flesh out the precise details when the results of the Consultation have been considered. It remains to be seen whether the proposals will alleviate delays in the planning process, or whether they will create more uncertainty by creating a more protracted process.
The consultation runs until 11.45pm on 15 April 2016 and is open to anyone with an interest in the proposals. The full consultation document can be accessed here.