Bypass usual approach

In Prokopp¹ rather than applying to the planning authority to vary the time limitation², the local authority decided that the developer could enter into a Section 106 agreement containing similar conditions to those in the lapsed planning consent. This strategy was preferred by both the developer and the local authority. One reason for this was that it circumvented the requirement for the consultation process which would otherwise have been triggered. Another was that a condition of the consent that specific land was to be made suitable for use as open space could be incorporated into the agreement as "planning gain".

Prospect of saving a gain

Prokopp will afford a useful solution for reviving a lapsed planning consent where the local authority wants to preserve a planning gain which might be vulnerable to calling in by the Secretary of State. Whilst the co-operation of the local authority is undoubtedly required to circumvent the requirement for an application for a variation in these circumstances it is equally certain that this was not the purpose for which Section 106 agreements were intended.

1 R (Prokopp) v (1) London Underground Ltd (2) LondonBorough of Hackney (3) London Borough of Tower Hamlets TLR 28 August 2003
2 S.73 Town and Country Planning Act 1990