In August, the Court of Appeal issued a decision in York City Council/Trinity One (Leeds) Ltd  EWCA 1883, in which it examined how the text of a section 106 obligation was to be interpreted when the Commission sought to impose it. On the face of it, the agreement did not make sense, because circumstances have changed so much since it was concluded. Both Mansfield and York are useful barometers of the courts` current position on issues relating to the application of Section 106 agreements, when circumstances have changed since the date of the agreement. While in the past the courts have ruled in favour of findings to recover funds for the provision of public infrastructure to local authorities, these cases reinforce this situation. In particular, if the logic behind the decision is followed in York in future cases; that, in the event of ambiguity, an effective approach should be adopted that allows local authorities, regardless of changes in circumstances, to enforce the objective of contributions to the financing of public infrastructure (as provided for in the agreement in point 106). In addition, as a result of the Ministerial Statement on Start-Up Homes, the guideline states that LPAs should not seek contributions to affordable housing development for affordable housing (but may still target s106, which will mitigate the impact on development). Sections 106 (3), 4 and 9 often give rise to “boiler plate” clauses contained in agreements establishing enforcement rules to exonerate individuals from their interests after the misappropriation of their interests, as well as, in the case of s106 (9), the formalities required in those acts. Where agreements are obligations relating to highways, whether it is construction of the alleged highway or acceptance/inauguration of land as a new highway, sections 38 and 278 of the Highways Act of 1980 may apply. These sections govern how land can be accepted by the local highway authority as a public highway (s38) at a public expense (s38), or guarantee funds for work on the existing highway or allow the developer to procure such works himself. Such provisions are generally provided for under a separate agreement, but it is no foreign that the agreements in point 106 also serve as motorway agreements. An appeal may be brought if the authority does not change the planning obligation as requested or makes a finding within a specified time frame. Obligations that “are or must be made available to persons whose needs are not adequately served by the commercial housing market” fall within the scope of this new procedure.
The Government in response to its consultation on measures to speed up negotiations and the S106 agreement; with respect to affordable and student housing, planning guidelines (PPGs), particularly Section S106, but also related areas, including cost-effectiveness guidelines, have changed significantly.