In the recent case of Norfolk Homes V North Norfolk DC [2020] the High Court sent a clear reminder to developers and planning professionals that Section 106 obligations attached to an earlier planning permission will not automatically bind a subsequent Section 73 consent granted to modify or remove planning conditions. The judge acknowledged that an original Section 106 agreement may be drafted in such a way as to create that legal relationship, but if such relevant provisions are absent in the agreement 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.
When making any application for modification of an existing planning permission, 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 the Section 106 agreement is an afterthought.
Please get in touch with the planning team if you need any advice on such matters.
