Section 106 Agreement

Are monitoring costs in a section 106 agreement capable of being a planning obligation in their own right? (High Court)

In Oxfordshire County Council v Secretary of State for Communities and Local Government and others [2015] EWHC 186 (Admin) the High Court has considered whether monitoring costs included as a planning obligation in a section 106 agreement were “necessary to make the development acceptable in planning terms” in accordance with regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948).

The High Court has held that the administrative and monitoring costs incurred by a local planning authority (LPA) in ensuring that planning obligations were observed were not capable of being a planning obligation in their own right.

It is part of the normal, everyday functions of an LPA to administer, monitor and enforce planning obligations in section 106 agreements. The payment of a monitoring and administration fee listed as a planning obligation in a section 106 agreement could not be recovered. The planning obligation failed the test in regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948) as it was not “necessary to make the development acceptable in planning terms”.

Written by James Naylor

Partner, CG Naylor LLP.