Q&As

Is a negatively worded condition preventing the implementation of certain development until an agreement under section 106 of the Town and Country Planning Act 1990 has been entered into lawful provided it complies with the six tests?

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Produced in partnership with Rosalind Andrews of HCR Law
Published on: 02 October 2023
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For planning conditions to be imposed lawfully, they must meet the tests set out in the case of Newbury District Council v Secretary of State for the Environment. These tests have also been incorporated into national planning policy in England in paragraph 56 of the National Planning Policy Framework. Further information about the tests can be found in Practice Note: Planning conditions—the six tests.

Guidance on how the tests should be interpreted in England is set out in Planning Practice Guide (PPG).

Paragraph: 010 Reference ID: 21a-010-20190723 of the PPG confirms:

‘A positively worded condition which requires the applicant to enter into a planning obligation under section 106 of the Town and

Rosalind Andrews
Rosalind Andrews

HCR Law

Rosalind Andrews is Head of Planning & Highways Law at Harrison Clark Rickerbys solicitors, covering the firm’s nine offices. She specialises in Planning and Highways Law, and advises on a range of contentious and non-contentious planning matters, including strategic planning advice, judicial review and other Planning Court challenges, and planning enforcement issues. She acts on behalf of a variety of clients, with particular experience of acting for developers and promoters in relation to residential development. She also acts on behalf of lenders, registered providers of affordable housing, and local authorities, as well as third parties with an interest in the planning process, such as local residents' groups. As well as negotiating Section 106 Obligations and other infrastructure agreements, she also advises on other matters affecting development, such as town and village greens, public rights of way, assets of community value, tree preservation orders, and compulsory purchase. 

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