In the midst of a housing crisis, the last thing we and developers need, is an ongoing dispute with regards to s.106 agreements that not only slows down, but sometimes stalls the planning process. This subsequently prolongs much needed development. It is for this reason that the DCLG have decided to consult on the idea of introducing a dispute resolution mechanism.
The consultation paper states that the current appeal routes “provide too blunt an instrument to deal effectively with delays or disputes related solely to the section 106 agreement”, and goes on to suggest that a much more focused mechanism is put in place.
It is thought that this will provide a resolution to situations whereby parties subject to the section 106 agreement are unable to agree on the scale and/or scope of mitigation necessary to make the development acceptable, and those where the parties concerned agree on the obligations, but the process of completing the necessary agreement drags on beyond the statutory or agreed timeframes.
Whilst highlighting that there are a number of different options for a dispute resolution mechanism, the DCLG has included within the paper, key points that it feels should be considered whilst creating a mechanism.
With regards to when the dispute resolution mechanism should be made available, the DCLG indicate that they believe it should become available when statutory or agreed timeframes have elapsed.
During discussions about what form the dispute resolution should take, the DCLG highlighted that, although potentially the fastest, an automatic or deemed solution would likely be unworkable in practice. A potential alternative was to provide access to external mediation, which has in fact been trialled before and unfortunately had very limited uptake.
Reference was also made in the consultation paper to the idea that the dispute resolution may need to involve an external body or qualified individual to determine what was required to make the development acceptable. Their decision would then be binding.
As the ultimate aim of this resolution is to speed the planning process, the DCLG indicated that it ought to be a fast track service and, to cover the costs, they have suggested that it should be self-funded through an appropriate level of fees.
Further considerations in the paper included whether all planning applications should benefit from the new dispute resolution mechanism or just those concerning major development. Also, they considered whether a resolution that created a binding agreement would also need to determine the related planning application as the two are so closely related.
Brandon Lewis, the Housing and Planning Minister says:
“Section 106 planning agreements can bring great benefits to local communities but too often they drag out planning applications for months…That’s why I’m proposing measures that will speed up the process, get planning permissions granted quicker and workers on site earlier, all the while keeping the community benefits that these agreements can bring.â€
Evidently, it will be a while until any form of dispute resolution mechanism is adopted, if at all, but if one were to be put in place, it would surely only improve the erstwhile bottlenecked and convoluted system.
BT                                                      www.propertysurveying.co.uk                 04.03.15