Since the new section 75 regime was introduced – now over 18 months ago – unilateral undertakings have been conspicuous by their absence. From some (very) rough and ready research it appears that these have been offered to the planning authority at the application stage in only a handful of cases, and of those at least one undertaking was rejected by the authority in favour of a traditional bilateral agreement. Similarly, it seems that Scottish authorities, unlike their English counterparts, have shied away from producing template undertakings which can be adopted by developers in suitable cases.
It may well be that unilateral obligations have been used more frequently at the appeal stage where an undertaking can be particularly useful, and there is at least some evidence of this. But why is it that the take up has been so low overall, particularly when s.106 undertakings are used as a matter of routine down south?
It may be that in simple payment cases, the practice of handing over a cheque is still preferred. There has been some criticism of this approach in an English case earlier this year where a cheque was offered to the authority as part of the application package pre-decision – the court was strongly of the view that a unilateral obligation should have been used, despite the developer’s explanation that lenders were not keen on these. But in any event, undertakings are clearly not restricted to payment cases.
Or maybe Councils are less than enthusiastic, and are discouraging applicants from taking this approach. Any thoughts?
On September 17, 2012