There have been recent examples in both Tunbridge Wells Borough and Folkestone & Hythe District where the councils were developing schemes on land within their ownership. This created a potential conflict for both authorities where they were potentially party to the planning obligations in more than one capacity.
Districts are keen to avoid this conflict and have sought legal advice to determine options to resolve it. Recent advice has suggested there are a range of options open to the District. These may include seeking a way of the district only entering into the planning obligation as planning authority not as landowner and leasing their land interest to a third party. There may also be instances where the district’s land need not be not bound by the planning obligation.
However, some of these options are not always preferable particularly where the council wishes to retain control of land within its ownership. An alternative option is for the County Council to take on the enforcing role on behalf of the LPA. KCC would be party to the planning obligation and identified as the local authority by whom the planning obligations are enforceable for the purposes of the s106 agreement.
Decision type: Key
Reason Key: Affects more than two Electoral Divisions;
Decision status: Recommendations Approved
Division affected: (All Division);
Notice of proposed decision first published: 29/04/2019
Decision due: Not before 28th May 2019 by Cabinet Member for Economic Development
Reason: In order hat the proposed decision can be published for a minimum of 28 days, in accordance with statutory requirements
Lead member: Cabinet Member for Economic Development
Lead director: David Smith
Department: Growth, Environment & Transport
Contact: Nigel Smith, Head of Development and Investments 03000 417 178 Email: nigel.smith@kent.gov.uk Tel: 01622 221930.
Consultees
The decision was considered and endorsed at the Growth, Economic Development and Communities Cabinet Committee on 9 May 2019.
Financial implications: The district would have to cover any financial costs to the County Council of taking on the enforcement role, for example liability insurance, legal costs incurred and officer time. These costs would be detailed as part of the decision-making process.
Legal implications: There are legal implications for any KCC decision to enter into a joint arrangement with another council to take on one of their functions. Invicta Law have advised that the proposal for KCC to act as enforcement body for local planning authorities is legally compliant. Legal advice would be sought in each specific instance.
Equalities implications: If appropriate, any specific request relating to a development site in Kent would be accompanied by an equalities impact assessment.