Updated PINS Guidance on Planning Obligations at Appeal

On 2nd October 2024, PINS updated its summary guidance to reflect the expectation that a planning obligation should be submitted at the point of making an appeal rather than seven weeks from the start date, accelerating the point at which a legal agreement needs to be prepared. 

The new timeframes are as follows:

Written Reps: Executed and Certified copy of Agreement submitted at the time of appeal to PINS

Hearings/Inquiries: Summary guidance states at the time of submitting the appeal (as above), however procedural guidance states “final draft 10 days before hearing/inquiry opens”.

Summary Guidance

The summary guidance now states:

“If you intend to rely on a planning obligation you should send an executed and certified copy with your appeal form for appeals proceeding by written representations. For appeals proceeding by either a hearing or an inquiry you should send a draft version with your appeal form and out start date letter we will send you will tell you when you must send the final draft to us.”

Procedural Guidance

The revised guidance in ‘Procedural Guidance: Planning Appeals – England’ has also been updated to state:

 18. Planning Obligations

18.2. Deadlines for the receipt of planning obligations

18.2.1. Planning obligations received after the following deadlines will be taken into account only at the Inspector’s discretion. The Inspector will not delay the issue of a decision to wait for an obligation to be executed unless there are very exceptional circumstances.

18.2.3. Hearings and inquiries

18.2.3.1. There should be continuous dialogue between the parties before the hearing or inquiry about the draft planning obligation to ensure that the final draft is as good as it can be.

18.2.3.2. The appellant should make sure that a final draft, agreed by all parties to it, is received by us no later than 10 working days before the hearing or inquiry opens. The Inspector’s and other parties’ preparation for the hearing or inquiry is likely to be significantly disrupted if this deadline is not met."

The summary guidance and detailed guidance is not consistent - they differ when it comes legal agreements for hearings and inquiries.

Whilst the summary guidance states that appeals to be heard by way of hearings/inquiries should be submitted with a draft Section106 Agreement, the detailed guidance does not. Instead, the detailed guidance says that “there should be continuous dialogue between the parties before the hearing or inquiry about the draft planning obligation” and that the final draft “agreed by all parties” should be to received “no later than 10 working days before the hearing or inquiry opens”. The time in which the draft should first be submitted is not explicitly mentioned.

Effect of Changes

 Local government departments often face significant resource constraints, making it a challenge for their legal teams to prepare, negotiate and finalise agreements within the existing appeal timeframes. The new guidance adds further time pressure, which is unlikely to be well received by the Local Planning Authority (LPA). It’s important to note that if a Section 106 Agreement is not completed within the specified timeframes, the risk falls on the Appellant.

The risk of missing the new deadlines is likely to lead to an increased use of unilateral undertakings. Given the resource challenges mentioned earlier, one major advantage of unilateral undertakings is that they do not require negotiation with the LPA. However, a significant drawback is that they cannot impose cross obligations on the LPA. Furthermore, changes may be necessary during the appeal process should they be requested by the LPA, Appellant or Inspector.