Planning Focus: Section 76 Agreements vs Planning Condition
31 May 2022
While we await the implementation of the new Local Development Plans by our Local Councils, the Commercial Property team at MKB Law has already started to see a trend emerge by some of the planning departments in Northern Ireland in favour of Section 76 Agreements where historically the subject of the agreement might have been dealt with by way of a planning condition.
What is a Section 76 Agreement?
Section 76 of the Planning Act (Northern Ireland) 2011 allows the Local Council planning department to enter into a legally binding agreement with a landowner as part of the grant of planning permission for a development.
Section 76 Agreements are to be used when it is considered that a development will have a significant impact on the local area that cannot be moderated by a condition contained in the planning permission.
What can a Section 76 Agreements cover?
Given that a development may place extra pressure on the social, physical and economic infrastructure of an area, the Section 76 Agreement may place an obligation on a developer to contribute towards road improvements, green travel measures or affordable housing to name but a few.
Section 76 Agreement v’s Planning Condition?
At present the Strategic Planning Policy Statement for Northern Ireland and specifically Paragraph 5.56 advises that a planning agreement should only be used when the imposition of a condition does not overcome the particular obstacles to the grant of a planning permission. Paragraph 5.2 of Development Management Practice Note 20 advises that when faced with the choice between a condition and a planning agreement, the planning authority should ‘firstly endeavour to impose a condition rather than seek to deal with the matter by means of a planning agreement.’
Policy and guidance advocates a ‘condition first’ approach for planning, however, notwithstanding the policy, we are seeing an increase in the use of planning agreements in lieu of conditions.
The planning department of the Local Council should consider each application on ‘case by case’ basis.
Who drafts the Section 76 Agreement?
Usually the Local Council will issue the first draft for review and negotiation with your legal team. It is essential that you liaise with your legal team at the earliest opportunity to try and prevent any delay in the grant of the planning permission.
Should you wish to speak to a member of our commercial property team in relation to any planning agreements, please do not hesitate to get in touch.