Many LPA’s include S73 clauses in their boilerplate s106 agreements and Unilateral Undertakings (often called planning agreements) – they read something like this.
In the event that the Council shall at any time hereafter grant planning permission pursuant to an application made under Section 73 or 73B of the Act relating to the Planning Permission the obligations in this Deed shall bind the Site in the event of it being developed pursuant to any such planning permission and the definitions of Planning Application, Planning Permission and Development in this Deed hereunder shall be read and construed accordingly to include any planning application under Section 73 or 73B of the Act and the planning permission granted thereunder and the subsequent development permitted.
This clause is inserted for administrative convenience – and extends the UU of S106 you are signing today – to future applications to amend the consent being granted today.
It seems a good idea – but in fact it’s a REALLY bad idea. So please make sure you delete this clause or anything like it before you sign your S106 agreement or UU.
A S73 application is a quick cheap and easy way to replace the planning agreement, you are signing today if it proves non viable in future (see our blog post on this subject here), and so often that is the case – as it is rare that all development costs are known when any planning permission is granted,.
All the clauses in a S106 or UU need to be justified by reference to CIL Regulation 122 – and administrative convenience does not figure in the framework of necessary, directly connected to the development, and proportionate, so you are on firm ground refusing to agree a S73 clause.
This advice could well save you hundreds of thousands of pounds in future – so remember it well!
