106 Agreements low-income families and Human Rights Act sign now

I apologise for length but this is important. The Human Rights Act offers everyone a right to a fair hearing and the peaceable enjoyment of their home. 106 agreements are a relatively recent addition to new housing developments whereby the occupants of a development are given sole liability for the infrastructure and maintenance. As most housing developments now have to include affordable low-income properties, there does seem to be some obligation on the Local Planning Authorities (LPA’s) to consider the cost of that liability before agreeing developments

The situation we have found ourselves in suggests there is an urgent requirement for a government review of 106 agreements to put safeguards in place to protect vulnerable people from local authorities failing to consider the implications and impact of agreeing developments without considering the kinds of cost involved in the maintenance and replacement of infrastructure. The government also needs to consider providing residents with easy access to independent, free, advice, support in getting matters addressed with the LPA/developer when things do go wrong. If vulnerable people cannot be offered free support then the peaceable enjoyment of their homes will be further eroded when LPA’s and developers close ranks leaving residents having to resort to online petitions. So let us tell you our story.

Wiltshire Council agreed our development of 26 properties with 6 affordable low-income homes , on the basis of the residents taking sole liability for a major piece of engineering, a wooden retaining wall running the whole length of the estate supporting the A303 which must have cost hundreds and hundreds of thousands to build. However, it gets worse. Under the Town & Country Planning Act there is an express duty on the local planning authority, when granting planning permission, to ensure whenever appropriate that adequate Conditions are imposed to secure the preservation or planting of trees. The trees on this proposed development should have been a ‘material consideration’ (as should the Human Rights Act) in determining permission as the wooden wall would be below them, the trees being on the adjacent site that belongs to Highways and runs along the A303 boundary.

It has come to light however, that despite the LPA giving permission on the basis of passing this huge liability onto vulnerable residents, they failed to follow basic planning process and consider the trees in relation to the wooden wall. The trees in this particular location were an ‘amenity’, the LPA had identified their importance as an acoustic barrier / screen and visual feature, however, a wooden wall and a density of trees required careful consideration of the mature height spread of the trees in relation to the how far the wall would have to be from the trees so that the trees would not damage the structure. The LPA however, did not consider the trees at all in relation to the wooden wall, no Conditions were included in relation to the trees, there are no surveys showing mature, height spread of trees and safe distance for construction even though three Conditions were included in the Decision Notice to ensure the structural integrity of the wall. When recently asked for tree surveys/ structural engineers reports / building control certificates (everything required during a normal house sale) the LPA said, " We have not retained any correspondence referring to the approval of the technical drawings and cannot, therefore, provide copies." How can that be? If you can’t buy a property on a mortgage without a survey etc., how can you buy a house with liability for a major piece of engineering that you cannot get buildings insurance on, without any paperwork beyond a Guarantee against woodworm which we assume will be voided as the wall was not suitable for locations with a density of trees what is more, we are not sure it was suitiable this close to a major highway!.

There are other problems on the estate relating to residents being covenanted into 106 agreements even though the developer themselves have not met the Planning Obligations. The Land Registry documents should not have been issued until the developers obligations were met because clearly the residents cannot meet their 106 agreements if the obligations, that were supposed to be met before the properties were sold, have not been met by the developer partly due to non-adherence of to road levels.

We therefore call on government to:

1. review 106 agreements in the light of the Human Rights Act, taking into consideration lower end of the market properties and vulnerable low-income residents.

2. ensure ALL liabilities are made explicit within the 106 agreements, liability for this wall was so well hidden most solicitors missed it. We recently passed the documents to a solicitor for an opinion, even when looking for the liability they failed to find it!

3. define 'reasonable' in relation to 106 agreements on the basis of what can be considered reasonable for residents to contribute towards maintenance and repairs, especially on low end of the market properties etc..

4. make sure that laws are put in place to support residents on freehold developments with 106 agreements from being presented with bills that they could not possible afford.

5. consider in relation to agreeing developments, the risk and the kind of money that would be needed in a sinking fund for instance on a wall that residents cannot get any insurance on beyond accidental damage. We believe that before this development was agreed, if liability for the wall was going to be passed onto residents the developer should have put at least £100000 into a sinking fund towards repairs and ultimate replacement before we were expected to start contributing.

6. ensure proper planning process is followed if liability for infrastructure is going to be passed onto residents, to include such things as tree surveys / structural engineers reports / building control certificates.

7. ensure free independent advice and support is available so that vulnerable residents have somewhere to turn to when things go wrong to be heard and for problems to be addressed.

We have been left with liability for a major piece of engineering which almost certainly would not have been given approval if proper planning process had been followed, yet we have nobody to turn to consider that liability in the light of the fact that proper planning procedures were not followed. Clearly that liability should be removed from our 106 agreements unless a structural engineers report etc can now assure us that the wall is suitable for the location etc.. We have appealed to the head of the Council in Wiltshire to investigate and ensure that lessons are learnt that ensure nothing like this happens again. We believe as much can be learnt from things going wrong as from things going right, what is important surely is the way the LPA and Government respond to situations when things do go horribly wrong.

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