Town and Country Planning Act 1990

[F1106BCAppeals in relation to applications under section 106BAE+W

(1)Where an authority other than the Secretary of State—

(a)fail to give notice as mentioned in section 106BA(9),

(b)determine under section 106BA that a planning obligation is to continue to have effect without modification, or

(c)determine under that section that a planning obligation is to be modified otherwise than in accordance with an application under that section,

the applicant may appeal to the Secretary of State.

(2)For the purposes of an appeal under subsection (1)(a), it is to be assumed that the authority have determined that the planning obligation is to continue to have effect without modification.

(3)An appeal under this section must be made by notice served within such period as may be prescribed by the Secretary of State.

(4)If no period is prescribed under subsection (3), an appeal under this section must be made—

(a)in relation to an appeal under subsection (1)(a), within the period of 6 months beginning with the expiry of the period mentioned in section 106BA(9) that applies in the applicant's case, or

(b)otherwise, within the period of 6 months beginning with the date on which notice of the determination is given to the applicant under section 106BA(9).

(5)An appeal under this section must be made by notice served in such manner as may be prescribed by the Secretary of State.

(6)Subsections (3) to (8), (10) and (11) of section 106BA apply in relation to an appeal under this section as they apply in relation to an application to an authority under that section, subject to subsections (7) to (15) below.

(7)References to the affordable housing requirement or the planning obligation are to the requirement or obligation as it stood immediately before the application under section 106BA to which the appeal relates.

(8)References to the first, the second or a subsequent application in relation to a planning obligation are to an appeal under this section against a determination on the first, the second or a subsequent application in relation to the obligation (whether or not it is the first such appeal).

(9)Section 106BA(5)(d) (discharge of affordable housing requirement) does not apply in relation to an appeal under this section.

(10)Subsection (11) applies if, on an appeal under this section, the Secretary of State—

(a)does not uphold the determination under section 106BA to which the appeal relates (if such a determination has been made), and

(b)determines that the planning obligation is to be modified in accordance with section 106BA(5)(a), (b) or (c).

(11)The Secretary of State must also determine that the planning obligation is to be modified so that it provides that, if the development has not been completed before the end of the relevant period, the obligation is treated as containing the affordable housing requirement or requirements it contained immediately before the first application under section 106BA in relation to the obligation, subject to the modifications within subsection (12).

(12)Those modifications are—

(a)the modifications necessary to ensure that, if the development has been commenced before the end of the relevant period, the requirement or requirements apply only in relation to the part of the development that is not commenced before the end of that period, and

(b)such other modifications as the Secretary of State considers necessary or expedient to ensure the effectiveness of the requirement or requirements at the end of that period.

(13)In subsections (11) and (12) “relevant period” means the period of three years beginning with the date when the applicant is notified of the determination on the appeal.

(14)Section 106BA and this section apply in relation to a planning obligation containing a provision within subsection (11) as if—

(a)the provision were an affordable housing requirement, and

(b)a person against whom the obligation is enforceable were a person against whom that requirement is enforceable.

(15)If subsection (11) applies on an appeal relating to a planning obligation that already contains a provision within that subsection—

(a)the existing provision within subsection (11) ceases to have effect, but

(b)that subsection applies again to the obligation.

(16)The determination of an appeal by the Secretary of State under this section is to be final.

(17)Schedule 6 applies to appeals under this section.

(18)In the application of Schedule 6 to an appeal under this section in a case where the authority mentioned in subsection (1) is the Mayor of London, references in that Schedule to the local planning authority are references to the Mayor of London.]