How to prove to a future owner that multiple phased payments (for example on completion of each unit) have been made or obligations in a new s75 have been complied with when new section75 declares that modification or discharge of an obligation is restricted to the statutory method defined?
As happened with planning agreements under old s75, new s75 obligations can provide for receipts from the Council as the payments are made or certificates of compliance as obligations are met. This will have contractual force and invoke some form of personal bar against the Council in respect of them and indeed may be sufficient for some obligations and some future owners. The aim is to save multiple applications for modification or discharge every time and multiple registration on the title. That approach may well be attractive to Councils (who don’t get a fee for such applications) and landowners (whose title bears the brunt of their registration). It could be agreed in the planning obligation that such applications be limited to occur at certain levels of payment or time(s) per year(s) or at point of disposal, for example. Applications for modification/discharge under s75A&B are stated the ONLY method of modifying or discharging a planning obligation and will remain available by law regardless of these contractual terms of course. However given the ease presumably with which modification/discharge could be achieved with reference to receipts /certificates the administrative convenience of them appears to have advantages all round in such circumstances.
But remember landowners s75C several liability – it must at least be limited contractually to reflect the effect of the receipts and certificates or potentially the game’s a bogey! Receipt/Certificate should mean, in the words of the legislation, requirement performed and not due!
On July 7, 2011