Are planning conditions worth the paper they are written on?
- Julian Vaughan
- Dec 7, 2023
- 11 min read
I will hold a hand up and say that up until a few weeks ago I did not know a great deal about planning conditions and S106 funding agreements. Since then, from delving into the lack of provision of cycle routes in my local area, and potential opportunities to improve their connectivity, I know quite a bit more. On the face of it, the issue probably doesn’t seem particularly riveting and you’d have a point, but how conditions to planning decisions are applied and how S106 funding is decided and spent has a significant impact on all our communities. This is why it is so important that the processes around these conditions and funding are both transparent and accountable.
The more I looked into the issue, the more concerns came to light. For those with an interest in sustainable infrastructure and how it is funded do feel free to take a look at my blog which covers funding for a potential cycle route here: http://julianvaughan.blog/2023/10/31/the-secret-world-of-s106-funding/ For a more in-depth look at the transparency and accountability of S 106 funding, and Central Bedfordshire Council’s response to my questions, you can read my blog here: http://julianvaughan.blog/2023/11/03/s106-funding-an-open-letter-to-central-beds-council/
This blog will refer to planning conditions and S106 agreements. What these actually are is set out below.
S106 agreements: “are a mechanism which makes a development proposal acceptable in planning terms, that would not otherwise be acceptable. They are focused on site-specific mitigation of the impact of development. S106 agreements are often referred to as ‘developer contributions’”.
Planning Conditions: “rather than refusing a planning application, a local authority might grant permission, but with conditions. These conditions might require additional approvals for specific aspects of the development.”
The details of the S106 funding agreements, the money that developers give to councils are publicly available on council websites. After originally looking at one of these agreements, relating to a development in Langford, Bedfordshire and its contribution of £80,000 to a cycle route, having a bit of spare time on my hands, I started looking at other S106 agreements in the local area, starting with the neighbouring Henlow parish.
As a frequent user of Arlesey train station, the first application to raise an eyebrow was the development of land to the West of the station which was opened as a car park. I noticed that the spend status of S106 funding received (£3,175.55) was showing as ‘uncommitted’ and the clawback date, 12th April 2024, when money received but not spent by the council has to be returned to the developer was approaching.
I then looked at the planning application in Central Bedfordshire Council’s planning portal. At the first attempt, there was no documentation available for this application, but following an email to the council, the documents were available. I understand that there has been some recent work on the portal.
Anyone who has taken a look at these applications will be aware there is a mountain of documents to trawl through. The documents I was interested in were the planning decision document and the S106 agreement, as from the entry above I couldn’t understand what the money was intended to be spent on.
Two items from these were of particular interest. Firstly, Condition 13.
Secondly, the below covenant to the council contained in the S106 agreement.
So, these two items mean that the granting of the planning permission was dependent on car park having electric vehicle charging points – and free parking for customers at weekends and bank holidays.
Having used the car park pretty much since it opened in January 2014 I could not remember any EV charging points or any free parking. However, just in case my memory was failing me I did ask on local social media whether either of these had been in place at some point since the car park opened. The response back from a number of people who had been using the car park confirmed that they had not.
On 24th November I wrote to Central Beds Council’s Planning Enforcement team asking two initial questions:
1: Why the Owner’s Covenant with the Council regarding free parking at weekends and bank holidays set out in the S106 agreement has not been enforced?2: Why Condition 13 (the provision of electric charging points) has not been enforced?
The first reply back from the council on the same day was as follows:
I can see from the enforcement files that no report was ever made to the team regarding Condition 13 and the enforcement team only investigate when a query is sent to the Council. A query was made to the enforcement team in 2014 regarding Condition 2 and 3 which was investigated, but no breach was found at the time.
Unfortunately, as you state that the car park has never had the electric charging points (since it was opened), this would mean that the breach has occurred for more than 10 years and would now be immune from enforcement action.
Regarding the s106, please leave this matter with me and I will look into it in more depth and come back to you as soon as I can.
I then received another reply from another person within the planning enforcement team to the same questions as follows:
1: Why the Owner’s Covenant with the Council regarding free parking at weekends and bank holidays set out in the S106 agreement has not been enforced?I don’t know. I suspect that the answer will be that the council wasn’t aware of a breach of its legal agreement. I have though copied the council’s planning obligations team to this email to ask if they can review your email and answer this question for you.
2: Why Condition 13 (the provision of electric charging points) has not been enforced?Because the council was not aware of a breach of its planning condition.
Although the council does carry out pro-active monitoring for compliance with planning permissions that have been granted it has only had the resources to do this since 2019. Previously, there was no such resource so the council relied wholly on people to report suspected breaches of planning control to it. When the new resource was introduced in 2019 the officers (two of them in fact) did not review old permissions but focussed on new development.
So, a rather startling admission that Central Bedfordshire Council had NO resource to carry out any proactive monitoring of the conditions applied to planning permissions up until 2019! Further, the resource then provided for this task did not look retrospectively at any conditions applied to planning permissions granted before 2019. I have been advised that the level of proactive monitoring varies from council to council.
Following this there were some email exchanges concerning when the car park actually opened. With some help from colleagues, I narrowed down the date of the opening to Monday 6th January 2014. This date is important as there is a 10 year limit for the enforcement of planning conditions applied to a planning decision.
Subsequently, on 5th December I received an email from Central Bedfordshire Council Planning Compliance which said:
“We have been unable to establish when the car park was substantially complete and, as you have informed us it was opened on 6th January 2014, we have probably run out of time with the 10 year rule.
We also decided that as no-one has raised the issue of no charging points in the last 10 years it would not be expedient to take any enforcement action at this late stage, even if we had time to serve a notice.
We will leave it with the planning obligations team to look into the S106 issues.“
Therefore, due to a lack of proactive monitoring and enforcement by Central Bedfordshire Council, the users of the car park at Arlesey station didn’t gain the benefit of being able to use electric vehicle charging points while their car was parked at the station. Disappointing in itself, but of course this would only disbenefit users of the car park who had an electric car. However, the covenant contained in the S106 agreement (excerpt above) regarding free parking at weekends and bank holidays would apply to every user who parked their car during those times since 2014 until today, so is arguably of greater public interest.
Further, my understanding is that covenants contained within S106 funding agreements are not time limited and the covenant runs with the land so it is irrelevant if there is a change of ownership of the land. *This understanding has been confirmed via email from Central Bedfordshire Council.
From my first email to the Council, I had been asking for further details about the S106 funding, asking if there had been any ‘variation of condition’ or similar that may have been applied to the covenant which had not been made public in the documentation on their planning portal.
Today I received a response on this matter from the S106 monitoring team, as follows:
“I apologise for the delay in responding, I have been unable to find any deeds of variation to the original agreement dated 7 January 2011. I was not aware of the non compliance of the free parking obligation and I referred the matter to our Planning Team on the 30th November 23 to determine the course of action to be taken. As soon as I receive a response from them I will let you know.”
Conclusion
This investigation raises a number of issues.
The complete absence of proactive monitoring of planning permissions and their associated conditions and agreements up until 2019.
The decision (perhaps understandable with the limited resources available) to not look retrospectively at any conditions agreed before 2019 when the resource became available. This does mean that conditions applied to planning applications between 2014 and 2019 (that are within the 10 year limit so therefore still ‘live’) have not been actively monitored for compliance by the council.
The Council relies on the public to raise concerns about any conditions or covenants that have been applied to planning permissions – presuming that they know where to find this information.
It seems that users of the large car park to the West of Arlesey train station have been paying for parking on weekends and bank holidays when there was a covenant agreed with the council that free parking would be provided.
The council has to date not enforced this covenant.
Members of the public have lost out financially due to this lack of enforcement. Parking is currently £3.30 per day at weekends.
The lack of enforcement of the condition regarding EV charging facilities means that an opportunity has been lost to, in the words of the reason attached to the condition “protect and contribute towards (a) carbon free environment”.
I have covered in the other blogs linked earlier about the need for greater transparency and accountability regarding how planning conditions and agreements are monitored, and how and where the money is spent across our communities. Central Bedfordshire like many other areas, has seen significant levels of housing development in our towns and villages, and our infrastructure has not been upgraded to cope with this increase.
I would suggest that there has been insufficient monitoring of the agreements made with the developers of this housing and our communities may well have lost out due to this. I will continue to press for greater transparency and accountability in this area. If planning conditions are not going to be monitored they really are not worth the paper they are printed on. As far as the free parking goes, we will have to see what the council’s next steps are.
Finally, thank you to those with far more knowledge of planning issues than me who have been in touch with me since I first started raising this issue.
Julian Vaughan
7th December 2023
email: julianvaughan2017@gmail.com
*Update 22nd December 2023* I received the following from Central Bedfordshire Council:
“I’m writing to update you in response to the issues that you raised with our Planning Enforcement team regarding the car park at Arlesey train station.
Provision 10 electric charging points
This is a requirement of condition 13 of the planning permission for the car park. Whilst details of the charging points were approved, it is clear that the charging points have not been provided. Consequently, we have now served a breach of condition notice on the owner of the car park which requires them to install the electric charging points within 4 months of the notice. Whilst we have been able to take this initial formal action, I should point out that if the landowner fails to comply with the requirements of the notice and can prove that there has been a continuous breach of the condition for a period of 10 years since the car park was substantially complete then we will be unable to pursue the breach any further.
Charging for parking at weekends and on bank holidays
Schedule 2 of the S106 Agreement relating to the permission for the car park obligates the landowner that there shall be no charging for parking at weekends and on bank holidays. It is clear from existing signage on the site that charges are being incurred for parking at weekends and on bank holidays. Given that this is a breach of a legal agreement between the Council and the landowner, we are instructing our solicitors to write to the landowner to warn them that they are in breach of the obligation and that failure to comply could result in formal action being taken, which could be through the Courts. This accords with our normal approach to breaches of s106 obligations.”
Although this relates to a single car park it does raise far wider issues around planning and enforcement.
1. It seems that the monitoring and notification of breaches of planning agreements and covenants are largely down to the general public, with the council playing a largely passive role in reacting to complaints made by the public, rather than proactively monitoring compliance.
2. While this situation may have improved over the last few years, I was advised by the council that there were no resources available for monitoring before 2019. While after 10 years the conditions in a planning agreement are no longer enforceable, there is still a window between 2014 and 2019 where planning conditions are still enforceable, but have not been actively monitored by the council. I will be asking the council what steps they intend to take to fix this.
3. Even if the public were aware of their primary role in enforcement planning (we clearly are not) the planning conditions and covenants are buried deep in mountains of documents which the vast majority of the public will have no idea how to access, or if they do, won’t have the time to trawl through. I will be asking the council how they will make the whole process and documentation more transparent and accountable.
4. I will also be raising how they will improve their governance to ensure that the circumstances surrounding this case are not repeated.
5. I will also be asking if the council intends to conduct a compliance review relating to S106 covenants, as unlike planning conditions, these are not subject to a 10-year time limit.
Why is this important? If conditions and covenants are not enforced it can have a detrimental impact on our communities in a variety of different ways, including environmental and financial. Further, trust in our politics, local and national, is at a low. Planning processes and decisions are seen, rightly or wrongly, as being imposed on local communities and people feel they don’t have a say.
The lack of transparency and enforcement of the conditions and covenants contained within the planning decisions further decreases our trust in politics and has a detrimental impact on our democracy. We must do better than this and councils must play their part in enforcing what is agreed upon and give local people a genuine say in what happens in their communities.
Finally. I found out all the above by chance. I was actually looking at a totally unrelated matter to do with a cycle path in another area. It is unlikely that I discovered the only instance of non-compliance at my first attempt. It shouldn’t be up to the public to enforce agreements between landowners and councils.
Sources and further reading:
Central Bedfordshire Council planning portal: https://www.centralbedfordshire.gov.uk/info/44/planning/478/view_and_comment_on_planning_applications
Section 106 Parish Reports: https://www.centralbedfordshire.gov.uk/info/44/planning/458/planning_obligations/2
Planning Inspectorate – Planning Obligations: good practice advice https://www.gov.uk/government/publications/planning-obligations-good-practice-advice/planning-obligations-good-practice-advice
By the author – The secret world of S106 funding October 2023: http://julianvaughan.blog/2023/10/31/the-secret-world-of-s106-funding/
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