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Secretary of State agrees with Inspector that “deficient” section 106 unilateral undertaking sufficient to refuse appeal for 705 houses in Surbiton

28 Sep 2017

A planning appeal for a large mixed use development in Surbiton which would have included 705 dwellings, a doctor’s surgery and a bus interchange has been refused by the Secretary of State agreeing with his Inspector.

Why?  Because the s106 unilateral undertaking submitted by the applicant was considered to be “deficient” and so would not be able to make the development acceptable in planning terms.  In particular the issues with the s106 included:

  • the viability review mechanism included to increase affordable housing provision in the event of a higher development profit did not contain appropriate agreed parameters;
  • an unsubstantiated reduction in the affordable housing provision in the event of a contribution towards strategic roundabout works being required due to the cumulative effects of a pending nearby development of a Lidl supermarket;
  • the inclusion of an unreasonable long stop date for the grant of planning permission for the Lidl development;
  • a clause requiring payment of the contributions conditional upon the Council entering into a further s106 to allow for the repayment of unspent or uncommitted contributions (a unilateral undertaking cannot impose obligations on the Council);
  • a lack of detail as to the nature of “intermediate” affordable housing units; and
  • not binding the appropriate land.

To read the full decision click here.

DMH Stallard’s Planning & Environment Group are well experienced in drafting and advising on s106 unilateral undertakings and agreements in both application and appeal scenarios for major and minor developments.  Do not hesitate to get in contact to discuss any issues or forthcoming s106s you may need assistance with.

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