Unilateral Undertakings for Planning Permission

“`html

Introduction to Unilateral Undertakings in Planning Permission

Unilateral undertakings have become a significant part of the planning process across England and Wales. These legal documents play a critical role in ensuring that developers meet certain obligations connected with their planning applications. But what exactly are unilateral undertakings, how do they differ from other planning agreements, and why are they increasingly favoured by developers and planning authorities alike? In this comprehensive guide, we delve into the intricacies of unilateral undertakings, exploring their purpose, legal status, advantages, and best practices for their use.

What are Unilateral Undertakings?

A unilateral undertaking is a legally binding promise made by a developer or landowner to a local planning authority as part of the process of securing planning permission. While they are most commonly used in England and Wales, their basic principles can be recognised in other jurisdictions with established planning systems. As the term ‘unilateral’ suggests, these undertakings are executed by one party – usually the applicant for planning permission – without the agreement of the local planning authority or other parties. This sets them apart from bilateral or multilateral planning agreements, which require the active participation and agreement of all involved parties.

Legal Framework for Unilateral Undertakings

The statutory basis for unilateral undertakings is found within Section 106 of the Town and Country Planning Act 1990. Section 106 provides local planning authorities with the power to enter into legally binding obligations with developers, securing contributions that mitigate the impacts of development. Unilateral undertakings are a special form of planning obligation under this legislation. The government also sets out guidance regarding their use, most notably in the National Planning Policy Framework (NPPF) and the supporting Planning Practice Guidance (PPG).

Unlike Section 106 Agreements, which are negotiated and signed by both the developer and the authority, unilateral undertakings are typically drafted and signed by the developer alone and then offered to the authority in support of a planning application. Once accepted, they become legally binding and form part of the consideration for granting planning permission.

The Difference Between Unilateral Undertakings and Section 106 Agreements

While both unilateral undertakings and Section 106 Agreements serve as planning obligations, there are several important differences:

• Party Involvement: Unilateral undertakings involve only the party making the promise (the developer/landowner), whereas Section 106 Agreements require participation by both the developer and the relevant local authority.
• Process and Negotiation: Unilateral undertakings are generally prepared unilaterally, often in standard format, and submitted with the planning application, whereas Section 106 Agreements are the product of negotiation between the parties, which can take considerable time.
• Scope: Section 106 Agreements can be more flexible and comprehensive in scope, capturing complex covenants and financial contributions over extensive projects. Unilateral undertakings tend to be simpler, addressing specific impacts such as affordable housing, public open space, or travel plans.
• Enforceability: Both are enforceable by law. However, because local authorities are not signatories to unilateral undertakings, they have less direct involvement in their terms and drafting.

When are Unilateral Undertakings Used?

Unilateral undertakings are best suited for straightforward developments where the obligations required by the local planning authority are clear, limited in number, and not subject to negotiation. Common scenarios include:

• Small residential developments seeking to secure affordable housing contributions
• Single dwelling applications requiring a financial contribution to local infrastructure
• Changes of use where minimal mitigation is necessary
• Simple obligations such as restricting future development, ensuring access, or controlling use of the land

They are less appropriate for complex large-scale schemes, where multiple parties and intricate triggers, covenants, or phasing arrangements are required.

Why Choose a Unilateral Undertaking?

For many applicants, the principal attraction of a unilateral undertaking is its efficiency. Because they do not require negotiation with the local planning authority, they can be drafted and submitted quickly, reducing delays in planning determinations. Other key advantages include:

• Quicker Process: Applications accompanied by valid unilateral undertakings can progress more rapidly, avoiding the often-protracted negotiations associated with Section 106 Agreements.
• Certainty: Applicants have more control over the obligations they are committing to, provided these meet the requirements set by the authority.
• Cost-Effectiveness: Faster and more efficient processes generally translate into lower administrative and legal costs.

For local authorities, unilateral undertakings also offer advantages by speeding up decision making and ensuring essential planning obligations are secured without time-consuming back and forth discussions.

Legal Validity and Enforceability of Unilateral Undertakings

The enforceability of unilateral undertakings is derived from Section 106 of the Town and Country Planning Act 1990. Once executed and submitted to the local planning authority, and once planning permission is granted on the basis of the undertaking, the obligations within it become legally binding and register with the land. This means that the obligations ‘run with the land’ and will bind successors in title unless they are specifically personal to the original party.

If a party fails to comply with the terms of a unilateral undertaking, the local planning authority can take steps to enforce its obligations through the courts. In extreme cases, this can involve an injunction to restrain a breach, or an order for compliance, potentially with significant financial penalties for non-compliance.

Drafting a Unilateral Undertaking: What Should be Included?

A unilateral undertaking should be clear, precise, and robust to ensure that there is no ambiguity in its terms or implementation. While template documents are often available, each undertaking should be tailored to the specifics of the development proposal and the requirements of the local authority.

Key elements typically include:

• Particulars of the Applicant: Names and addresses of the parties making the undertaking
• Site Details: Accurate description and plan of the land concerned
• The Obligations: Clear articulation of the promises being made, including any financial contributions, works to be completed, or restrictions imposed
• Trigger Points: When the obligations should be fulfilled (e.g. before commencement, on occupation, etc.)
• Enforcement Clauses: Provisions about how breaches of the undertaking will be handled
• Registration: Confirmation that the undertaking is a local land charge and will bind successors
• Contact Details: For any notifications, payments, or matters arising

Common Types of Planning Obligations in Unilateral Undertakings

Unilateral undertakings can encompass a wide range of common planning obligations, including:

• Payments towards affordable housing provision
• Contributions for education facilities, highways, public open space, or public transport improvements
• Restrictions on the use or occupancy of land such as limiting further development or securing certain uses
• Management and maintenance covenants for landscape or ecological areas
• Provision of travel plans or implementation of specified mitigation measures

It is critical to ensure that any proposed obligation meets the legal tests set out in regulation 122 of the Community Infrastructure Levy Regulations 2010. These require that the obligation is necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind.

The Procedure for Submitting a Unilateral Undertaking

The process typically involves several consecutive steps:

1. Drafting: The developer or landowner prepares a draft unilateral undertaking, usually referencing the relevant planning application and identifying the proposed obligations.
2. Consultation: The draft is submitted to the local planning authority for their review to ensure that the obligations meet their policy requirements and are appropriately worded.
3. Execution: The finalised document is signed, often as a deed, and witnessed in accordance with legal requirements for deed execution.
4. Submission: The executed undertaking is formally submitted to the local planning authority, who may lodge it as a local land charge.
5. Determination: The planning authority considers the undertaking alongside the planning merits of the application when making their decision.
6. Implementation: Upon grant of planning permission, the obligations in the unilateral undertaking come into effect according to their specified trigger points.

Common Issues and Pit