Norfolk Homes V North Norfolk DC [2020] EWHC 2265
In this recent High Court decision Holgate J sends a clear reminder to developers and planning professionals that Section 106 obligations attached to an earlier permission will not automatically bind a subsequent Section 73 consent. The judge acknowledged that an original Section 106 may be drafted in such a way as to create that legal relationship, but absent the relevant provisions no such effect should be implied as a matter of interpretation. Whilst it is now common practice to include ‘future-proofing’ clauses within Section 106 agreements, they should not be assumed.
Our recommendation - when making any application for modification of an existing consent careful consideration should be given to whether and how any existing planning obligations will apply to the new scheme – at the risk of delaying determination of the application if Section 106 is an afterthought.
