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21st June 2021

What is the scope of a planning committee’s delegation to officers to negotiate s106 agreements?

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The Court of Appeal has recently given helpful clarity on the scope for which officers can negotiate s106 agreements following a resolution to grant permission from their planning committee. Importantly, it also gives guidance on how a planning committee can have greater input into its terms if so desired.   

The case of Flynn, R (On the Application Of) v The London Borough of Southwark Council & Anor [2021] EWCA Civ 827 concerned the judicial review of a planning permission for 979 residential units within the Elephant and Castle Opportunity Area. The focus of the challenge was how the social housing for the site was secured in the s106 agreement and whether such drafting was within the scope of the officer’s delegation following the council’s committee decision to grant the planning permission. The contention being that the planning obligations for social housing allegedly differed in their delivery to that stated in the officer’s report to the committee.

In finding the council acted lawfully in entering the s106 agreement and granting planning permission following the committee resolution, the Court of Appeal discussed the following three key issues: (a) what is the instrument of delegation by planning committees to officers to negotiate and complete s106 agreements; (b) what is the scope of that delegation; and (c) can committee members limit such scope.

What is the instrument of delegation?

On the first issue the Court of Appeal determined that the instrument of delegation was the committee’s resolution and not the officer’s report or specific passages in it. In this case, the council’s committee had resolved in the usual way ‘that planning permission be granted, subject to conditions and the applicant entering into an appropriate legal agreement …’.

The Court of Appeal found that this resolution properly authorised officers to negotiate the s106 agreement and was not ultra vires. Additionally, as officers had lawful delegation, it was not irrational or otherwise unlawful for the council to then enter into the S106 agreement in the agreed final form, or to grant planning permission having done so.

What is the scope of delegation?

On the second issue the Court of Appeal determined that the delegation to officers in negotiating the s106 agreement was broadly framed in scope and tasked officers with the negotiation of “an appropriate legal agreement”. Importantly, the resolution did not require the legal agreement to be on terms specified or indicated by particular paragraphs in the officer’s report. It also did not require the application to be brought back to the committee for further consideration in the light of the draft s106 agreement in its final, agreed form, to enable the members to see whether a particular provision had been inserted.

As to what is an “appropriate legal agreement” the Court of Appeal found that this allowed for the possibility that there were several forms in which the agreement could be “appropriate”. It did not prescribe any particular provisions that would have to be included to make it so. The delegation left it to the officers to decide, in their own discretion, in what form the agreement would be “appropriate”.

In relation to the officer’s report to the committee, the Court of Appeal found that under the committee’s resolution the report was to inform the officers’ exercise of their professional judgment on the appropriateness of the agreement, but not prescriptive such as to predetermine that exercise of judgment.

Can committees limit the scope of delegation?

As to the final issue, it is important to appreciate that as the instrument of delegation is the committee’s resolution it is available for members to expressly limit within the resolution the scope of delegation for the negotiation of the s106 agreement.  By example, as the Court of Appeal noted, in this case the council’s committee could have picked out elements of the officer’s advice as laying down parameters for the negotiation of the s106 agreement or indicating how its main provisions were to be formulated.

 

If you have any questions in relation to this article or require assistance in matters concerning planning and judicial reviews then the Planning Highways and Environment Team at HCR Hewitsons LLP will be happy to assist.