Successful Application for the removal of a Section 106 Agreement

This case relates to a farm near Bexhill. The relevant planning history dates to 2009 and the approval of proposals for an agricultural worker’s dwelling, subject to an Agricultural Occupancy Condition. A Section 106 Agreement tying the approved house to the land at the farm was put in place at the same time

In 2022 a parcel of the land was removed from the Agreement by an application for battery storage thereby creating a Deed of Variation.

Why seek removal of the Agreement?

The farm today consists of 10 ha of pasture. This is not a viable farm, and the farmer relies on other off lying blocks of land to provide him with sufficient income. While the wording of the Occupancy Condition allows him to remain in his home once retired from farming, the non-severance agreement prevented him from making any alternative arrangement for the farming of the land.

Since the first Agreement in 2009, the agricultural industry has been through significant changes including Brexit, resulting in a reduction of farm payments further depleting incomes of small farm holdings.

Smaller units are inevitably being subsumed into larger units in order to be worked. The non-severance clause potentially prevented this from happening.

Strict legal tests limit the use of S106 Agreements only to cases where it can be demonstrated that they are necessary to make development acceptable in planning terms; are directly related to the development and are fair and reasonably related in scale and kind to the development. They should not be used where a planning condition can be used to do the same job. We argued that the non-severance covenant was not necessary and was counter-productive to viable farming.

We demonstrated that the removal of the Agreement would not cause significant or demonstrable harm.

We successfully argued that the Agreements served no useful purpose, and were preventing the landowner from making plans for his land to be farmed other than by himself in the event that he was no longer able to farm the land personally and that the use of land to serve more than one purpose is supported by the NPPF.

Discharge of the Agreement enables the land to be further used for purposes connected to renewable energy and for grazing. This additional income from the diversified business enables the farmer to retain a viable farming business.