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Is payment of administration and monitoring fees in section 106 obligations unjustified in some circumstances, and could we achieve faster conclusion of section 106 Agreements through dispute resolution?
The recent case of Oxfordshire County Council v Secretary of State for Communities and Local Government  casts doubt on the entitlement of local authorities to seek administration and monitoring fees through section 106 planning obligations.
Regulation 122 of the Community Infrastructure Levy Regulations 2010 requires planning obligations to comply with certain tests in order for them to constitute a reason for granting permission, including that the obligations must be necessary to make the development acceptable in planning terms On appeals, for each planning obligation entered into, Inspectors will scrutinise carefully whether they comply with the tests and therefore whether any weight can be attached to them.
The local authority applied to quash the Inspector’s decision.
This judgement will affect local authorities used to routinely recovering the costs of administering and monitoring planning obligations from developers. The judgement does not preclude such fees from being sought in different circumstances, perhaps relating to complex circumstances where monitoring is a reasonable requirement. The onus will be on authorities, however, to justify how any such circumstances comply with Regulation 122 and why the level of fee sought is reasonable.
Section 106 agreement negotiations sometimes lead to a delay in obtaining planning consents. The government has issued a consultation  which seeks views on dispute resolution mechanisms to speed up the process and avoid applications ending up at appeal.
The government states that negotiations get “bogged down” because:
This view may be a little simplistic but certainly many negotiations suffer from these issues.
Planning guidance is to be revised to deal with issues of delay. Revised guidance will:
The government has asked for views on various matters including whether the decision should be binding, what external bodies would be suitable to provide the resolution service and the funding of the process.
Any statutory changes will be left to the next Parliament.
  EWHC 186 (Admin)
 ''Section 106 planning obligations - speeding up negotiations'' consultation (February 2015)
This article was written by Jemma Gregory.
For more information please contact Jemma on +44 (0)20 74271023 or firstname.lastname@example.org.