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Requirements of Circular 05/05: Planning Obligations

The Secretary of State has recently issued his decision on the planning appeal last year into major redevelopment proposals for Brighton Marina. The appeal was dismissed on the ground that the unilateral S.106 obligation was defective in several respects including the failure by the developers to bind in all parties interested in the land. In particular, although the Council is the freeholder of the site on Brighton's coast, it was not made a party to the undertaking, nor were the two most significant tenants on the redevelopment site, Asda and McDonald's. The Secretary of State was not prepared to offer the appellants the chance of more time to try and perfect the obligation, to which Morag Ellis QC and Rob Williams had objected on behalf of Brighton and Hove City Council at the inquiry. It was held that the undertaking failed to meet the requirements of Circular 05/05 and presented unacceptable risks to the public interest. The scheme had originally been rejected by members against officers' recommendation and, although the inspector and Secretary of State regarded elements of it as less than ideal, the decision did not ultimately turn on points of design or adequacy of public open space provision. The decision is also notable for its consideration of the CLG/CABE sponsored Building for Life evaluation method. Overall, the decision follows the line taken by the Secretary of State under the previous Government in respect of parties to s.106 obligations, for example at the TRL site in Bracknell in 2009, where Morag Ellis QC and Tom Cosgrove successfully resisted development on, amongst other bases, the inadequate s.106.