Section 106 agreement did not bind subsequent section 73 permission (High Court)

The High Court has held that a section 106 agreement entered into in 2012 did not bind a subsequent section 73 permission granted in 2015.

Holgate J stated that the parties could have chosen to use language in the section 106 agreement which extended the definitions of “Development” and “Dwelling” so that they applied to development, whether carried out pursuant to the original planning permission or a subsequent section 73 permission. But the parties did not. In addition, it was not acceptable for additional wording which would cover subsequent planning permissions to be implied into the section 106 agreement. (Norfolk Homes Ltd v North Norfolk District Council and another [2020] EWHC 2265 (QB) (20 August 2020).)

This decision simply reiterates the need to engage planning specialists at an early stage and ensure direct communication between your team of planning advisers, solicitors and development team.