Removal of a 106 Agreement

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    Removal of a 106 Agreement

    Good morning

    Following a small majority vote at an AGM, an application was submitted to the local planning office regarding the removal of a 106 agreement relating to the principle occupiers age to be 60 or above. Service charge monies have been used to finance the application with the following clause stated to support the expenditure. The lease contains no mention of the 106 agreement.

    I have read and re-read the clause which precedes the schedules in my lease, but as a layperson I still can’t decide whether I have cause to object or not.


    1. In this lease:


    In this clause:

    (i) ‘’the planning acts’’ means the Town and County Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990 and the rules, regulations and orders which are either made under one of them or are continued by the Planning (consequential Provisions) Act 1990, as they apply from time to time

    (ii) ’’ permission’’ means permission given under the Planning Acts to carry out development.

    a) To comply with the Planning Acts as they affect the property.

    b) Not to carry out any development on the property which requires permission.

    c) If the Landlord requires, and at the Landlord’s expense, to join the Landlord in making representations about any proposed developments on the property or neighbouring property.

    d) To allow the Landlord to enter the property to comply any lawful requirement under the Planning Acts, even if that restricts the enjoyment of the property.


    Thanks in advance.



    Kind regards

    BB

    #2
    The clause you quote does not allow the cost of the application to be financed by service charge monies.

    Comment


      #3
      Thank you Lawcruncher. Very much appreciated.

      Comment


        #4
        Good morning

        Re: Modification or Discharge of a 106 Agreement


        A controversially formed residents association comprising of the leaseholders whom the 106 is enforceable against, submitted an application to modify the 106 accompanied by an Article 12 Certificate (A).

        I objected and an amended application was submitted accompanied by a certificate (B) naming me as a sole (leasehold) interested party.

        I objected again and a revised application was then submitted accompanied by a certificate (B) naming all the parties with a leasehold interest that notices had been served on.

        I am preparing my next objection, but require some expert advice before I submit it. The freehold of the land in question which forms the development (residential flats) is a Ltd Company of which all the leaseholders are shareholders/members.

        As far as I can ascertain, there is no provision in my lease or the other leases which are in identical form, to allow the residents association to act on behalf of the freeholder. The articles of association and memorandum are also silent on the matter.


        1. Have I good cause to raise my concerns regarding the exclusion of the freeholder/Ltd Company as an interested party?

        2. Can the applicant keep submitting amended and revised applications or should a fresh application have been submitted?

        3. Has the applicant/residents association which includes the sole director of the Ltd Company/Freeholder knowingly acted in a reckless manner in completing false and misleading certificates?

        4. Has the applicant’s agent acted in a manner not befitting a solicitor?


        I would telephone or visit the LPA to discuss these issues, but due to disabilities this is not possible. My only option is to email, but due to the volume of comments they receive, letters are not acknowledged nor do they enter into correspondence or discussion on points raised.


        Thanks in advance


        Kind regards


        BB

        Comment


          #5
          The ability to submit a planning application is not restricted to those who have a proprietary interest in the land. All that is required is for the applicant to notify those with certain interests; see here: http://www.planningportal.gov.uk/pla...ly/whocanapply

          It would seem that you have exhausted the procedural objections. Even if you have not they will eventually get it right so further objection on procedural grounds will do no more than delay. What you need to concentrate on now is the substantive issue of the proposed modifcation or discharge of the section 106 agreement. Marshall your objections and submit them to the planning authority. If it is within your budget and you feel so inclined engage a planning consultant to make the objection, not that that will guarantee success.

          Even if the application is succesful that does not mean that the change can be effected as planning law does not override real property or landlord and tenant law. There may be something relevant in your lease:

          1. Is there a covenant restricting occupation to persons over a certain age?

          2. Is that covevant expressed to be with all the tenants in the block as well as with the landlord and/or any management company?

          3. Is there an obligation on the landlord to enforce the tenant's covenants at the request of a tenant?

          Comment

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