Non-compliance with 106-Planning Obligation

Maitri_2

Hi I have posted several times on the problems we have had on our development. Essentially the developer has failed to comply with the 106-Planning Obligation (PO) linked to all the purchasers Land Reg Titles. The PO was for the provision of recreational open space to be retained in perpetuity. The purchasers are covenanted into a multilateral agreement to observe and perform the restrictions, however we can't as the developer has never complied.

The Phase 1 properties were sold to finance the Phase 2 build so the 106-Planning Obligation had not been complied with prior to our purchase. When it became apparent that the developer was not going to be able to comply due to non-adherence of road levels (we have a 15 foot mound rather than a flatish/green recreational open space), we asked the developer and Council to deal with the breached 106 agreements. The developer however, put in a Planning Application to vary the landscape finish on the non-existent recreational open space. Quite apart from their being no recreational open space to vary the finish on, we are of the understanding that non-compliance to a 106 Planning Obligation cannot be dealt with via planning law, as they come under contractual law. We have therefore asked the council to ensure that formal discharge is sought to address the problems with our Land Reg Titles. The Council are REFUSING to respond to any of our letters. We have letters from the enforcement officer in December 2011 confirming 9 breaches in planning conditions, however the developer wrote to residents on the estate 2 weeks ago saying there had never been any breaches or any obligation on him to provide recreational open space.

We are getting nowhere with the developer /Council or even Corporate Complaints, meanwhile we have all been covenanted into complying with Planning Obligations that do not exist. Anyone got any ideas? Have we got any legal comeback? I believe the only route is via Judicial review but what does that mean? Can we lodge with Land Reg that the Planning Obligations have never been met thereby warning any would-be purchasers? The developer still has about 7 properties to sell. We are a small development of low-end of the market housing to include affordable homes, nobody can afford solicitors.

2nd Q - I have spoken in this space previously that the developer is attempting to hold us liable for a retaining wall that supports and retains highways land. The original officers report said conditions would need to be entered to ensure its maintenance, but no Conditions were entered into the Decision Notice. The only Condition relating to this wall left the developer liable for the walls structural integrity but no mention was made as to its maintenance. We have 24 pges of Planning Obligations relating to the 106-Agreements but the retaining wall is not mentioned. We have 4 pages relating to the mowing of the non-existent recreational open space. There is no mention of the retaining wall in the Land Reg Titles either but the developer is saying it is the 'common land'! If the Council did not make the purchasers liable for maintenance /repair/replacement via Conditions and/or Planning Obligations covering management issues, and there is no mention of the retaining wall in ANY legal paperwork, then can the developer now IMPOSE this liability on the residents? All paperwork in relation to the wall has gone missing, and the provider of the wall said it was not suitable for areas near trees (there are a density of trees above our wall) and was not suitable for walls that had to pass through the highways technical approval process, this wall did! Again any ideas? Thanks sorry this is long, this has been a 1 year headache, feeling quite desperate.

Richard_Webster

Sorry, but I have seen this before and there is so much detail here that it would be impossible for any one to give any sensible advice on a forum like this.

You have to be prepared to spend serious money on having a solicitor advise you in detail about what to do.

Maitri_2

Thank you , but I wonder should residents have to spend serious money to adddress simple breaches in 106 -Planning Obligations? So without 'serious money' do residents have to simply pay up ? Surely there are some flaws in the system if this is true? We are simply seeking some clarity as to our way forward here.

Essentially what is being asked is :

1. what can we do if we cannot observe and perform the restrictions in our Land Reg Titles linked to the 106-Obligations because the developer has failed to meet his? Do we have legal recourse for breach of contract or is the breach of contract only with the Council, even though we are jointly and severally liable?

2. is there any way we can inform Land Reg that there are breaches in the 106-Obligations on the development perhaps?

3. if there is no mention in any of the planning documents about liability for the retaining wall and nothing in the Planning Obligations dealing with the management of the estate that mentions the wall and nothing in the Land Reg Titles specifically about the retaining wall, on what basis can we be held liable?