Guidance

Procedural guidance for Section 62A Authorities in Special Measures

Updated 13 November 2024

Applies to England

1. Introduction

1.1 Background to Section 62A Applications

1.1.1. From 1 October 2013 the Growth and Infrastructure Act inserted two new provisions into the Town and Country Planning Act (1990) (‘the Act’). In particular, Section 62A allowed major applications for planning permission, consents and orders to be made directly to the Planning Inspectorate (acting on behalf of the Secretary of State) where a local planning authority has been designated for this purpose. Subsequently amendments were made by the Housing and Planning Act 2016 to expand the type of application beyond major development.

1.1.2. The Secretary of State can designate a Local Planning Authority (LPA) where they consider it is not adequately performing its function in determining applications.

1.1.3. Where an LPA has been designated, an applicant may choose to submit an application to either the LPA or the Planning Inspectorate. Only applications for development which falls within the category(s) to which the designation relates can be submitted to the Planning Inspectorate. Certain types of applications, including householder applications, are excluded and cannot be submitted to the Planning Inspectorate (see Appendix 2).

1.1.4. The purpose of this Procedural Guide is to provide additional information to applicants, designated authorities, local communities and other stakeholders involved in this. This guide does not have statutory status.

2. Pre-application process for major development

2.1 Introduction

2.1.1. Applicants can apply directly to the Planning Inspectorate for advice and assistance at the preplanning application stage. Pre-application advice is given without prejudice and it does not necessarily follow that the outcome of any formal application will be the same.

2.2 What will it cost?

2.2.1. Where the Planning Inspectorate gives advice about applying for planning permission, under Section 62A a fee will be payable. The rate for Planning Inspectors for this work is £134 per hour.

2.3 What is the role of the Planning Inspectorate?

2.3.1. It is not the role of the Planning Inspectorate to remove a designated LPA’s ability to provide good quality and timely advice to applicants. Applicants can choose whether to seek pre-application advice from the relevant LPA and/or the Planning Inspectorate.

2.3.2. On receipt of a request for pre-application advice a Case Officer will be appointed who will act as the main point of contact.

• A charging strategy/schedule will be agreed between the applicant and the Planning Inspectorate.  Only once a charging schedule is in place will the pre-application process commence.
• Information will be requested from the LPA by the Planning Inspectorate as outlined in 2.4 below.
• The Planning Inspector will review the submission and carry out the site visit (where relevant).
• The Planning Inspectorate will not undertake consultation on the proposals.
• For major development proposals a development project meeting may be held between the applicant and the Inspectorate.
• Formal advice will be issued by the Planning Inspectorate to the applicant. This advice may request further information or details on a particular issue, recommend revisions to a scheme, or advise on further stakeholder involvement for the applicant to carry out.
• Other than for minor areas of clarification an additional charge would need to be agreed before any additional advice is provided.
• Subject to progress the application will be ready for submission.
• There is no minimum or maximum timescale for the pre-application process.

2.4 What is the role of the planning authority?

2.4.1. An LPA that has been designated will still play an important role in the pre-application process.

2.4.2. A designated LPA will be expected to provide the following information to an applicant and the Planning Inspectorate as part of the initial pre-application process:

• copies of relevant local land and policy designations or land allocations
• copies of relevant development plan policies, strategies, supplementary planning documents, guidance, and development briefs etc
• information relating to approaches to Community Infrastructure Levy rates and planning obligations
• full details of the planning history of the proposed development site
• a list of relevant local community groups, including Parish Councils and other organisations and stakeholders; and
• details of other development proposals that are likely to affect a particular scheme (eg on an adjacent site)

2.5 What is the role of the applicant?

2.5.1. It is not the purpose of this guidance to set out excessively prescriptive requirements for applicants seeking pre-application advice. The Planning Inspectorate, however, will expect applicants to provide the following information:

• a completed pre-application form (Please refer to Appendix 1 for a copy of the pre-application form)
• relevant plans drawn to scale showing the location of the site, and confirmation of the relevant LPA
• relevant plans or information
• a supporting statement identifying what the main issues are considered to be, what consultation has been carried out to date and a summary of stakeholder comments, and how it is intended that the pre-application process will shape the development of the proposal.

2.5.2. Consultation must take place early in the process so that stakeholders may positively influence proposals before submission.

2.5.3. For major developments, applicants are strongly encouraged to carry out community consultation separately, alongside discussions with the Planning Inspectorate and the LPA.

2.5.4. Meaningful consultation should also take place with statutory consultees. For example, if the application site is known to be in an area identified to be at risk from flooding then it is strongly advised that initial investigations are prepared and pre-application consultation is undertaken with relevant consultees. Any advice provided by a consultee should be included in the pre-application documents submitted to the Planning Inspectorate.  It may also be necessary to liaise with the LPA in respect of certain matters, such as the content and structure of any section 106 agreements where applicable.

2.6. How should the request for pre-application advice be submitted?

2.6.1. Prior to submitting a request for pre-application advice please notify the Planning Inspectorate ([email protected]) of your intention at least 10 working days in advance of submission. Please include the following details: type of application, applicant name, site address and description of the proposed development, the likely issues, and the likely date you will make your request.

2.6.2. When submitting your request for pre-application advice please refer to and follow the following sections of our guidance on communicating electronically with us.

• 3.1 Acceptable file formats
• 3.2 File sizes
• 3.3 Security
• 3.4 Copyright
• 3.5 File names
• 3.6 Scanning
• 3.7 Ordnance Survey
• 3.8 Images
• 3.9 Hyperlinks
• 3.11 Formatting

Please keep file names as short as possible whilst also taking into account the advice in 3.5 above.

Requests for pre-application advice should be sent via email to [email protected].

2.6.3. If you are not able to submit electronically please telephone 0303 444 5000.

2.6.4. The Planning Inspectorate does not provide pre-application advice in respect of non-major development.

3. Submission of Applications

3.1 What can be submitted to the Planning Inspectorate?

3.1.1. The Planning Inspectorate can only accept applications within the boundaries of a designated LPA. Designations are made separately for major and non-major development. There are some types of applications that have been excluded and cannot be submitted to the Planning Inspectorate. Definitions of major and non-major development and the excluded development types are provided in Appendix 2.

3.2 Pre-submission checklist

3.2.1. Before submitting an application for a development proposal directly to the Planning Inspectorate under Section 62A, applicants are strongly encouraged to:

• identify what the main issues are likely to be with reference to the development plan, the National Planning Policy Framework, supplementary guidance documents and issues raised by pre-application community consultation or advice
• ensure that all the issues identified are adequately and appropriately addressed in the application submission. This should be included within a Planning Statement or in an accompanying letter submitted with the application
• carryout pre-application discussions with any key stakeholders including statutory consultees; and where appropriate, prepare a draft planning obligation or unilateral undertaking to address issues which will be raised by the development proposal (see 8.3 Appendix 3 Community Infrastructure Levy and Planning Obligations)

3.3 Validation requirements

3.3.1. A valid application is one that complies with the national validation requirements and meets the relevant requirements of the designated LPA’s published local list.

3.3.2. Most designated LPAs will have their own local list of validation requirements, which may add to or expand the national criteria. Applicants will be expected to meet the requirements of the Local List.

3.3.3 Prior to submitting applications, applicants should check whether applications for development would be within the boundaries of designated LPAs with an adopted Community Infrastructure Levy. Where this is the case, and the development would fall within the definition of chargeable development, please see 8.3 Appendix 3 – Community Infrastructure Levy and Planning Obligations of this guidance below.  

3.3.4 The designated charging LPAs are Bristol City Council, Chorley Council and Lewes District Council.

3.3.5. Where pre-application discussions have been carried out with the Planning Inspectorate, the necessary validation requirements can be discussed prior to submission.

3.4 How should the application be submitted?

3.4.1. Prior to submitting an application, please notify the Planning Inspectorate of your intention at least 10 working days in advance of submission.  For major applications please use [email protected] and for non-major applications please use [email protected].  Please include the following details: type of application, applicant name, site address, site area in hectares, description of the proposed development, the likely issues, and the likely date of submission. Please note, where building work or the change of use has already started applications cannot be submitted to the Planning Inspectorate.

3.4.2. Please use the appropriate downloadable application form, available on the designated Local Planning Authority’s website or Planning Portal, taking account of the relevant guidance notes. Please complete the form using block capitals, if it is not possible to complete the form electronically, please complete using black ink and scan and save a copy for submission.

3.4.3.  Application forms, with a single copy of the supporting application documents, should be submitted electronically to;

Major Development: [email protected]

Non-Major Development: [email protected]

For applications received in this way, all communications from the Planning Inspectorate will also be carried out electronically. When submitting your application please make clear that the application is made to the Planning Inspectorate under Section 62A of the Town and Country Planning Act and confirm if, with respect to the Planning Inspectorate, the applicant/agent is (a) a member of staff (b) an Inspector (c) related to a member of staff (d) related to an Inspector. Please also refer to the following sections of our guidance on communicating electronically with us.

• 3.1 Acceptable file formats
• 3.2 File sizes
• 3.3 Security
• 3.4 Copyright
• 3.5 File names
• 3.6 Scanning
• 3.7 Ordnance Survey
• 3.8 Images
• 3.9 Hyperlinks
• 3.11 Formatting

Please keep file names as short as possible whilst also taking into account the information in 3.5 above.

3.4.4. The fee charging schedule at the application stage is the same as that set for LPAs. Application fees are payable to the Planning Inspectorate on the same basis as an LPA and are calculated using the fees regulations (The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012). There is an exemption for fees associated with a second application relating to development on the same site and following withdrawal of an earlier application, or refusal of permission (commonly referred to as the “free go”). Such exemptions, however, only apply where the second application is submitted, within 12 months of the application being approved / refused or the valid application being received if the application is withdrawn, and where an application has previously been submitted to the Planning Inspectorate (with the required fee) in the 12 months preceding 6 December 2023. The exemption does not apply where the original application is submitted to the Planning Inspectorate but the subsequent application is submitted to the local planning authority or vice versa. Where a decision has not been made within 26 weeks the planning application fee will be refunded (unless a longer period has been agreed in writing with the applicant).

3.4.5 When submitting your application please advise what you anticipate the fee will be and provide the information below in respect of who will be making the fee payment.

• applicant details (individual or business name, address, telephone and email address)
• who we can contact in the Accounts Department (name, telephone and email address) for enquiries
• postal address (if different from above) and contact at this address (name, position, telephone and email address)
• invoice address and email address (if different from above)
• business purchase order (if needed to be quoted on our invoice)

We will confirm the amount and how the fee should be paid on receipt of the application.

3.4.6. Please note that the information provided on the application form and in supporting documents will be published at Section 62A Planning Applications.

3.4.7. If you are not able to submit your application electronically please telephone 0303 444 5000.

4. Determination of applications

4.1 The role of the Planning Inspectorate

4.1.1. Each application is managed by a Case Officer, who is responsible for ensuring that all the necessary processes are followed and the correct information is received.

4.1.2. A copy of the application documents will be made available at Section 62A Planning Applications and will be provided to the LPA. Consultation with statutory consultees and the designated LPA will be carried out by the Planning Inspectorate.  The requirements, and timescales for consultation, are set out in the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order 2013.  Where required, the Planning Inspectorate will also publish a notice advertising the application in a local newspaper.  Consultation responses will be published at Section 62A Planning Applications no later than 5 days after the close of the representation period.

4.1.3. The Planning Inspectorate will appoint an Inspector to determine the application. The Inspector will be provided with the application documents, representations and any other relevant documents including the development plan policies.

4.2 The role of the designated Local Planning Authority

4.2.1. The designated LPA has a statutory duty to complete a questionnaire and provide information about the site, planning policy, and constraints in the area. Templates for the questionnaire are available at Appendix 4 and Appendix 5. Where the LPA has provided pre-application advice to the applicant, this can also be submitted; however if it is submitted the LPA must be content that it is published at Section 62A Planning Applications. The LPA also must carry out its normal notification duties, which may include erecting a site notice and/or writing to the owners/occupiers of adjoining land. The LPA’s notification will make clear that responses to applications should be sent to the Planning Inspectorate.  The LPA is expected to undertake non-statutory consultation where necessary.  The requirements and timescales, for notification by the LPA, are set out in the Town and Country Planning (Section 62A Applications) (Procedure and Consequential Amendments) Order 2013.

4.2.2. The LPA is also a statutory consultee and must provide a substantive response to the consultation within 21 days. This should include:

• the policies and any guidance, that are considered relevant
• responses from any internal and non-statutory consultees
• set out any amendments to the scheme, or additional information the LPA, considers to be necessary
• a recommendation, with reasons, for whether planning permission should be granted or refused
• provide detailed comments on any submitted planning obligations, or set out any matters that the LPA considers should be secured through an obligation; and
• a list of conditions in the event that planning permission is granted

4.2.3   The LPA should work constructively with the applicant to ensure any Section 106 agreement is completed within the required timescales.

4.3 Consultations and representations

4.3.1. Statutory consultees are required to provide a substantive response within 21 days.

4.3.2. Details of how interested parties can make representations about a proposal can be found on the individual applications at Section 62A Planning Applications.

4.3.3. Consultation responses and representations must be received by the deadline given (usually 21 days from the start of consultation). Any representations submitted after this date may not be taken into account.

4.4 Amendments and extension of time agreements

4.4.1.   When submitting an application to the Planning Inspectorate, applicants must ensure that it is ready for determination. A decision will be made on the application as submitted. There is no specific provision in the process for amendments or revision to the application once it has been submitted. Applicants should ensure that the relevant information is submitted with the application, as we will not accept any additional information once the application has been submitted, other than in exceptional circumstances.

4.4.2.  The expectation is that the application, once submitted, is ready for determination.

4.4.3. In exceptional circumstances where an agreement for an extension of time, in which to determine the application is necessary, the Case Officer will set out to the applicant:

• the reasons for the extension of time
• any additional information considered necessary
• the date required for the submission of any additional material; and
• the revised determination date for the application

4.4.4. On receipt of agreement from the applicant to the extension of time, a revised timetable for determining the application will be published at Section 62A Planning Applications.

4.5 Recovery of applications

4.5.1. Applications made under section 62A of the Town and Country Planning Act 1990 will be considered for recovery under section 76E where the Secretary of State considers it may be appropriate for those cases to be determined by Planning Ministers. This power will be used exceptionally.

5. Procedure to be followed

5.1 Criteria to determine the procedure to be followed

5.1.1. At the end of the consultation period the Planning Inspectorate will determine the procedure to be followed. Planning applications relating to development of a significant scale, and which raise issues which cannot be clearly understood from the written submissions will require a hearing.  It is expected that the vast majority of applications for non-major development will be determined by written representations.

5.1.2.  In the event that a hearing is required its purpose will be for the Inspector to allow any who wish to make oral representations and for the Inspector to put questions to address any points of fact or outstanding queries they may have.  It is not a forum for parties to seek to test the evidence of others through cross-examination or direct questioning.  In most cases it is expected that the designated LPA will provide a suitable venue for the hearing.  It is expected that the Local Planning Authority and Applicant will be represented at the hearing.

5.1.3.  Where an application is determined through the written representations procedure, the application will be determined by the appointed person on the basis of the written submissions usually following a site inspection.

5.2. Issuing of the decision

5.2.1. The Planning Inspectorate will issue a formal decision notice incorporating a statement setting out the reasons for the decision. If the application is approved the decision will also list any conditions which are considered necessary.

6. After the decision

6.1 Is there a right of appeal?

6.1.1. There is no provision to appeal the decision, irrespective of the outcome. Similarly, there is no provision to appeal directly against the imposition of any conditions imposed on a permission or consent under Section 62A.

6.1.2. An application to the High Court under s288(1) of the Town and Country Planning Act 1990 is the only way in which the decision made on an application under Section 62A can be challenged. An application must be made within 6 weeks of the date of the decision.

6.2. Who makes sure development is carried out in accordance with the planning permission?

6.2.1. Where planning permission has been granted under Section 62A the LPA continues to have the responsibility for monitoring the implementation of the permission, ensuring that it is carried out in accordance with the approved plans and any attached conditions. Applications for the approval of details required by condition must be submitted to the LPA. Applications for variation or removal of conditions can also be made to the LPA.

7. Contact the Planning Inspectorate

7.1.1. If you wish to contact the Planning Inspectorate our contact details are:

The Planning Inspectorate
Major Casework Team

3rd Floor
Temple Quay House
2 The Square
Bristol
BS1 6PN

Helpline: 0303 444 5000

Email: 

Major Development: [email protected]

Non-Major Development: [email protected]

8. Appendices

8.1 Appendix 1 Pre-Application Advice form

Appendix 1 – Pre-Application Advice form - available as a separate document

8.2 Appendix 2 – Applications covered by S62A and excluded applications

For the purposes of section 62A, ‘major development’ and ‘non-major development’ are defined within Regulation 3(5) of the Town and Country Planning (Section 62A Applications) (Written Representations and Miscellaneous Provisions) Regulations, as amended by The Town and Country Planning (Section 62A Applications (Amendment) Regulations 2016. Major development is:

• the winning and working of minerals or the use of land for mineral working deposits:
• waste development;
• the provision of dwellinghouses where
  • the number of dwellinghouses to be provided is 10 or more; or
  • the development is carried out on a site having an area of 0.5 hectares or more and the number of dwellings is not known;
• the provision of a building or buildings where the floor space to be created by the development is 1,000 square metres or more; or
• development carried out on a site having an area of 1 hectare or more.

Non-major development is development that does not meet/exceed any of the thresholds above.

There are a number of types of applications that cannot be submitted to the Planning Inspectorate under section 62A:

• applications where the development has already been carried out (As described in section 73A of the Town and Country Planning 1990 Act, as amended);
• householder applications (As described in article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2015);
• applications for development without complying with conditions (As described in section 73(1) of the Town and Country Planning 1990 Act, as amended);
• applications for approval of details reserved by condition;
• applications for advertisement consent; and
• applications for lawful development certificates.

Applications for the approval of reserved matters can be submitted to the Planning Inspectorate provided the outline planning application to which it relates fell within the category of development for which the relevant planning authority has been designated.

An application for listed building consent can only be submitted to the Planning Inspectorate where it is connected to an application for planning permission submitted under section 62A. Both applications must be submitted on the same day and the application for listed building consent must be considered a ‘valid application’ within 10 working days of the related planning application being considered valid.

8.3 Appendix 3 – Community Infrastructure Levy and Planning Obligations

Community Infrastructure Levy (CIL)

We recommend that in circumstances where an LPA has an adopted CIL in place, and the development would fall with the definition of a ‘chargeable development’ under CIL legislation, that planning applications are made to the relevant LPA rather than the Planning Inspectorate. 

In contrast to applications made to the LPA, the Planning Inspectorate cannot charge CIL on applications submitted under s62A, so any necessary mitigation under CIL cannot be achieved and taken into account when considering the application. This may have an adverse effect on the prospects of whether the development is acceptable. 

It is therefore recommended that in circumstances where an applicant wishes to have potential mitigation through CIL taken into account, that the application is made to the relevant LPA rather than the Planning Inspectorate.

Should an applicant decide to submit a CIL liable application under Section 62A it will be considered on its own individual facts and circumstances. However, planning permission is only likely to be granted if appropriate infrastructure mitigation can be secured for the proposed development, if found to be necessary.

With regard to the use of planning obligations in these circumstances (the timescales for which are explained below) there is a risk that a s106 agreement submitted in lieu of a CIL payment may not pass the tests as set out in NPPF paragraph 57.  This is because it may not be clear how a monetary sum based on floorspace of a proposed development, without knowing what it will be provided for, would pass those tests. However, it may still be a material consideration and the weight to be attributed to it would ultimately be a matter for the decision maker.

Planning Obligations

Planning obligations, also referred to as Section 106 Agreements or unilateral undertakings, mitigate the impact of unacceptable development to make it acceptable in planning terms. The obligation is a formal legal agreement which is entered as a local land charge. It may place a restriction on the use of the land, require development to be carried out in a specific way, or require a financial contribution to be made by the applicant or their successor(s) in title.

Planning obligations may also be required even where a designated authority has adopted a CIL.

Applicants should contact the LPA at a sufficiently early stage to ascertain what is required in respect of any Section 106 agreement.

How and when will I know if a planning obligation is required?

The Planning Inspectorate strongly advises all applicants pursuing applications through Section 62A to engage in pre-application discussions with all relevant stakeholders. This allows for a consideration of the main issues early in the development process where the likelihood of potential planning obligations can be raised. Agreement on the principles of a planning obligation should be reached with the local planning authority and any relevant stakeholders prior to submission.

During pre-application discussions the Planning Inspectorate will expect designated authorities to identify any tariffs that are already in place which may be triggered by the development proposal. It will be necessary for the LPA to justify the site specific need for a planning obligation.

In cases where no pre-application consultation has been carried out with the Planning Inspectorate, levy rates and/or relevant local policies should be provided with the Section 62A application questionnaire. By the end of the formal representation period, the Planning Inspectorate will expect all requests for planning obligations to have been made formally in writing, including an appropriate level of information and detailed justification. Where this has not been provided, the late submission of requests for planning obligations will only be accepted at the discretion of the appointed person.

Who is responsible for progressing an obligation?

Where a planning obligation is proposed the Planning Inspectorate will not be a signatory. The agreement will remain between the applicant, the landowner(s), and the LPA. The designation of an LPA for the purpose of Section 62A applications does not change this. Consequently, the Planning Inspectorate will not be responsible for the preparation or completion of any agreements. When considering if an LPA should be de-designated, its performance on progressing legal agreements is one of the factors that are taken into account.

It is the responsibility of the applicant and the LPA to ensure that a completed agreement is in place so that it can be taken into account in reaching a decision. For applications dealt with by the written representations procedure, the completed agreement should be submitted within two weeks of the end of the representation period. Where there is a hearing the agreement should be submitted in advance of the hearing date.

For the obligation to be considered complete, it must be signed and dated by all relevant parties and accompanied by a plan where necessary. A certified copy should be submitted to the Planning Inspectorate accompanied by a declaration from the LPA certifying that that it is a true copy of the original. The LPA should retain the original copy.

Where there is disagreement between the parties as to the content of an agreement, or whether all aspects are necessary, it can be structured so that the appointed person can direct that certain obligations are ‘struck out’ in the event they are found to fail the relevant tests. Where such an approach is taken, the applicant must submit a statement detailing reasons for each obligation they believe does not meet the tests. The LPA should set out its case in its formal representation.

Where the applicant considers that financial contributions would render the scheme unviable, the Planning Inspectorate will expect them to submit site-specific information relating to the viability of the scheme, to be submitted with the application. Where detailed analysis of additional information is required, an extension of time agreement may be necessary.

What should be submitted with an application?

Applicants should also be aware that some designated LPAs may set out the need for a draft Heads of Terms or draft Unilateral Undertaking as part of their local validation requirements. As a consequence, some applications will need to be submitted with this information for validation purposes. Given the timescales involved, however, applicants are strongly encouraged to have any obligations at an advanced stage prior to the submission of the application.

Parties to the planning obligation

Normally, all persons with an interest in land affected by a planning obligation – including freeholder(s), leaseholder(s), holders of any estate contract(s) and any mortgagees – must sign the obligation. Where there are different ownerships it may be necessary to define them by reference to a plan. Where an obligation is proposed, the agreement will remain between the applicant and the LPA, the Planning Inspectorate will not be a signatory.

The planning obligation must give details of each person’s title to the land. This should be checked by the LPA and the appointed person will ask for its assurance. Normally this is in the form of an up-to-date copy of an entry or entries from the Land Registry.

Where an applicant has only an option to purchase the land, the current landowner(s) will need to be party to any obligation binding the land. Counterpart documents are legal documents identical in all respects except that each is signed by a different party or parties. This is not appropriate in the case of planning obligations, since these are public law documents which are entered on the planning register and the local land charges register and are often copied to residents and other interested people. The planning obligation should be one single document executed by all the relevant parties.

There may be exceptional circumstances where it is agreed in advance by the parties that counterparts are the only practical option. In these cases, both the appointed person and the LPA should be satisfied that certified copies of all of the individually signed documents have been provided (by a solicitor or other suitably legally qualified person).

Format of the planning obligation

Where designated local authorities use a standard format for planning obligations, then these should continue to be used through the Section 62A process.

At a minimum it is expected that all parts of a planning obligation, including the signatures, should follow in sequence without gaps. The signatures should not normally start on a new page.

Any manuscript alterations to the text must be initialled by all the parties. Any documents or plans which are annexed to the planning obligation must be clearly identified in the text (by document title and date or drawing number) and any plans which are identified must be attached. Any plans must be signed by all the parties and any colouring of plans must match the description given in the text. If any plan is found to be inaccurate or missing, the planning obligation will need to be re-executed with the correct plan(s) attached.

Content of the planning obligation

In summary, a planning obligation, whether a s.106 Unilateral Undertaking or Section 106 agreement, should include the following:

• the land to which it relates (by a plan if necessary);
• the parties to the obligation, by names and addresses, and their relevant interest in the land. If a party is an offshore company it must give an address for service of documents in the UK;
• that it is a planning obligation, the legal powers under which the agreement or unilateral undertaking is entered into and the name of the LPA by which it is enforceable;
• that it comes into effect upon the grant of planning permission - even if the actions required by the obligation are triggered by subsequent events, such as commencement of the development;
• precisely the requirements which it imposes on the party or parties giving the covenant(s) in sufficient detail (including the parts of the land to which they are to apply, where relevant) to make them enforceable; and
• that any financial contributions are to be paid to the local planning authority or (by a suitably worded provision in the deed) any other relevant authority responsible for the provision of the particular public services to which the contributions apply.

It might be necessary to define, by reference to a plan, the proposed site(s) of particular facilities (e.g. open space) to be provided, or the detailed specification of the purposes to which particular financial contributions are to be put (including any time limits, quality checks, etc. which are to be applied).

It must make it clear when each of its requirements is triggered and whether there are any conditions affecting the performance of that requirement. For example, it should make it clear whether some other event needs to occur, or formal notice needs to be given, before a financial contribution becomes payable; or whether the terms of a transfer of land need to be agreed before affordable housing or some other community benefit is delivered.

Can a Unilateral Undertaking be submitted?

Where an applicant is already aware of the need for a planning obligation, or where an applicant considers a particular obligation to be sufficient to meet the relevant tests then a unilateral undertaking can be submitted. Where this is the case, the Planning Inspectorate will expect the undertaking to be submitted with the planning application.

Where a unilateral undertaking is submitted as part of the planning application, it will be for the applicant to provide the necessary information to demonstrate why it is sufficient. Unless this is revised during the course of the application the appointed person will proceed on the basis of the information submitted.

A unilateral undertaking should not try to impose requirements or obligations on any person other than the signing party e.g. it would not be acceptable to try to require a Registered Provider to exchange contracts within a set period.

Planning obligations and the provision of affordable housing

If a planning obligation provides for affordable housing as part of the proposed development, the Planning Inspectorate will need to be satisfied that:

• the type(s) of affordable housing which it is proposed to provide are satisfactorily defined;
• where there is a split between the different types of affordable housing it is justified and that there are arrangements to secure it;
• there are clear and specific provisions dealing with the distribution of the affordable housing;
• the covenants are drafted in a way which will ensure delivery of the proposed housing. The planning obligation should state who is to be responsible for the construction of the affordable housing;
• if the land to be used for affordable housing is to be transferred (e.g. to a Registered Provider), the relevant land is clearly identified on a plan, and there is a restriction on development until arrangements for the transfer are made as set out in the planning obligation or in a document annexed to it;
• if the Registered Provider is a party to the planning obligation, it includes positive covenants to ensure that the affordable housing will be constructed and (by a suitably worded provision) transferred to the Registered Provider (possibly with a cascading mechanism in case of default by the preferred Registered Provider);
• if none of the parties to the planning obligation is a Registered Provider (and assuming the applicant itself is not going to build the affordable housing), there are adequate and reasonable arrangements for securing a Registered Provider;
• the phasing arrangements for delivery of the affordable housing are satisfactory. The planning obligation should not allow most of the market housing to be sold before the affordable units are available for occupation. The provision/occupation of both types of housing should be appropriately synchronised;
• if the affordable housing is to be provided off-site, or a financial contribution made in lieu of provision, there is robust justification for this, and what is on offer is of broadly equivalent value (see paragraph 50 of the Framework);
• the planning obligation contains adequate controls to ensure that any affordable housing is retained as affordable for an unlimited duration;
• the arrangements for allocating the affordable housing (e.g. nomination rights involving use of the local authority’s housing waiting list or allocations to qualifying persons by a Registered Provider) are satisfactory;
• if the planning obligation includes a cascade arrangement, there are adequate time-periods at each stage, especially before triggering any “fall-back” clause which would enable the affordable housing to revert to the developer for sale on the open market; and
• the proposed arrangements for managing the affordable housing are adequate.

8.4 Appendix 4 - S62A Questionnaire (application)

Appendix 4 - S62A Questionnaire (application) - available as a separate document

8.5 Appendix 5 - S62A Questionnaire (connected application)

Appendix 5 - S62A Questionnaire (connected application) - available as a separate document