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Car parking – avoiding the need to right a wrongly granted right

Thu 16 Feb 2017

For many large scale developments in central London, car parking spaces (and more specifically rights to park in those spaces) are highly sought after. However, if not considered early in the planning process, car parking management can cause a number of difficulties.

Rights to park can be granted in a number of ways, for example on a first come first serve basis or by way of specific allocation/exclusivity. It is common for both rights to be granted at a development.

Whether due to the flexible terminology with which “right to park” is used or the time at which a right to park is granted (i.e long after the planning process began), rights to park may have been granted without planning consent or in breach of a planning obligation and it is not until some years later that issues arise. This is can be particularly problematic on developments where residents become affected by the availability of parking (or lack thereof) at their development. Some common pitfalls are listed below with possible methods to reduce the risk of parking rights becoming an issue after the initial planning process.

1.    Planning Permissions

All local planning authorities will likely attach a condition to a planning permission that requires the development be carried out in accordance with the approved plans or documents submitted with the planning application. In some instances, those plans will be listed on the face of the planning permission.

In negotiating planning conditions, some flexibility should be provided for in the conditions. Wording such as “unless otherwise agreed in writing by the local planning authority” or “the development shall be carried out in substantial accordance with the approved plans” could future-proof a condition of this sort as it would technically allow for plans to be updated slightly by agreement with the local planning authority, rather than requiring the submission of a further planning application to vary the condition.  

Consider also the contents of any transport assessment or travel plan for any development as this could also (albeit inadvertently) be included as a document that is required to be complied with. The position may have changed in the time between submission of the application and the grant of permission and it is of course, the permission that is of importance and which is required to be complied with.

2.    S106 Agreements

Any agreement pursuant to Section 106 of the Town and Country Planning Act 1990 (S106 Agreement) is likely to contain obligations regulating the car parking management for a development. Obligations can be secured in a number of ways, for example;

  • A number of express obligations detailing how parking allocation is to be dealt with for a development (i.e number of permits to be granted and on what terms);
  • a requirement to submit a car park management plan based on a list of principles agreed with a local planning authority;
  • a requirement to comply with a car park management plan appended to the S106 agreement itself; or
  • a requirement for leases to include certain rights or restrictions

Although a local planning authority has the ability to decide whether to enforce the terms of a S106 Agreement, a requirement or restriction imposed by a planning obligation is nevertheless enforceable by injunction (i.e via court proceedings).

Again, the key is flexibility:

  • Any definitions or car parking management obligations in a S106 Agreement should contain wording such as “unless otherwise agreed in writing”.
  • Plans attached to S106 Agreements do not necessarily have to be as detailed as the technical drawings submitted as part of a planning application and therefore details of proposed allocations or parking spaces may not necessarily be relevant.
  • If the S106 Agreement references specific documents (for example a car parking management plan) then the appropriate definitions should cover future versions of that document in the event it is updated.

An obligation in a S106 agreement is enforceable against the person who entered into the s106 agreement and also against anyone deriving title from that person and therefore from a disposals perspective, the S106 Agreement should exclude liability for individual residents.

Just because there is a breach under a S106 Agreement does not necessarily mean there is a breach of planning control, but any associated planning permission should be checked.

Optimisations

As is the case with many large developments there will be a point where the scheme being delivered needs to be amended. An application for a minor material amendment (more commonly known as “s73 application”) is usually made to vary a condition of an existing permission. Any permission granted from a s73 application is a new permission and therefore it is therefore important that the wording of any existing conditions (insofar as they are not varied) are carried across to the new permission or alternatively updated whether they have previously been too restrictive.

Similarly, if a deed of variation is required as a result of a s73 application, ensure consistency through the planning obligations. For example, if the original planning obligation allowed the allocation of spaces or exclusive use to a parking area of the development, ensure this is not removed by a later deed of variation which instead requires no more than one general parking permit to be issued to each resident of the development.

A clear strategy at initial planning stage, followed with a consistent approach from starting on site to final disposal should reduce the risk of complications arising later in the lifetime of a development and once occupation takes place and whilst there are options to regularise the planning position, this does not necessarily regularise the position with residents who are directly affected.

 

 

Karen Cooksley
Partner
T. +44(0) 7593 5182

E. kcooksley@wslaw.co.uk

 

Matthew Steinbrecher
Solicitor
T. +44(0) 7593 0374

E. msteinbrecher@wslaw.co.uk

 

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