Contracting In the Public Interest Case Study

Contracting In the Public Interest Case Study The First Case Study A residential development in Colchester S.106 agreement obliging the developer to:  Make financial contributions to local service and infrastructure provision  Provide on-site affordable housing and public amenity areas Why are s.106 agreements like this? A highly discrete contractual arrangement? A set of rules? But are these agreements doing what we think they're doing? We need to think about monitoring and enforcement Does a s.106 agreement then begin to look different? Planners As Contract Managers  Closer monitoring tends to correlate to fuller delivery (Burgess and Monk 2016)  But effectiveness of LPA monitoring tends to be highly variable  Acquiring and processing contract information is expensive  Can an LPA gather the information theoretically available to it (and then do anything with that information)? The Cultural Effects of The Clauses and Schedules in S.106 Agreements David Feldman (2016): Legislation that contains declaratory, promissory, aspirational or rhetorical statements, rather than legally binding rules, can 'weaken respect for legislation and so damage its psychological power’ What about developers? A means to control the pace of expenditure and cashflow Providing 'long-term certainty [and] risk-free investments' (Taşan-Tok and van den Hurk 2019) The Second Case Study  Proposed development of the former Wards department store and adjacent buildings  Land initially in multiple different ownerships  Development Agreement entered into between London Borough of Haringey and a developer in which Haringey agreed (amongst other things) to assemble the land for development by using its compulsory purchase powers The Planning Background  2008- Haringey grants planning permission  2010- Court of Appeal quashes Haringey's decision (R (Harris) v The London Borough of Haringey and others [2010] EWCA Civ 703) due to Haringey's failure to discharge its duty under s.71(1) Race Relations Act 1976  May 2012 Haringey receives new application for planning permission (to discharge its duties under s. 149 Equality Act 2010, Haringey commissions an equalities impact assessment, which makes various recommendations regarding the application)  July 2012 - Haringey grants planning permission  Haringey Council, Report for Consideration at Planning Sub- Committee, 25 June 2012, HGY/2012/0915 and HGY/2012/0921.  10.7 The updated report concludes that the development brings positive and negative equalities impacts and provided that all the measures set out in the S106 agreement are honored in full and in a timely manner, many of the negative impacts can be mitigated. The Land Acquisition Process  2016 - Haringey made a Compulsory Purchase Order (CPO) to enable it to acquire outstanding land interests on the development site  2017- A public inquiry took place to consider whether Haringey's CPO should be confirmed. To justify the CPO, Haringey promoted the benefits of the proposed development. Local authorities 'would be well-advised to make proper arrangements, as far as reasonably practicable, to relocate displaced businesses, residents and other occupiers and to provide assistance in that process' (Winter and Lloyd 2006). With that in mind, Haringey and the developer agreed modifications to the s.106 agreement What Did the Modified Agreement Say About the New Market? The developer covenants [t]o use Reasonable Endeavors to satisfy the Market Condition and to enter into the Market Lease PROVIDED THAT: a) if the Market Condition is not satisfied, there shall be no requirement to enter into the Market Lease and/or to provide the New Market Area; and b) if the Market Lease (or a binding and unconditional agreement to enter into the Market Lease) has not been completed with the Market Operator six (6) months before Practical Completion of the Development, there shall be no requirement to enter into the Market Lease and/or to provide the New Market Area What Did the Modified Agreement Say About the Temporary Market? The developer covenants: a) 'Not to permanently close the Market unless and until the Temporary Market has been Practically Completed and is ready for occupation' (schedule 3, paragraph 2.2) b) 'Not to permanently close the Temporary Market unless and until the New Market Area has been Practically Completed and is ready for Occupation' (schedule 3 paragraph 7.6) The Public Inquiry and The Secretary of State's Decision The Planning Inspector's report concluded that: The s. 106 agreement would 'minimize any residual disadvantage suffered by the Traders, and would include reasonable steps to meet their needs, thus advancing equality of opportunity' (para. 361), despite the absence of any 'cast-iron guarantee' that the developer would provide a new market (para. 304). (The Secretary of State agreed and confirmed the CPO) The Market Traders' Views The traders presented alternative development proposals (Taylor 2020; Russell and others 2023) and argued that: a) The rental scheme in the s. 106 agreement was unaffordable and poorly conceived b) Contractual provisions referring to 'local independent traders' did not protect their interests What About Monitoring and Enforcement Arrangements? Haringey Council, Scrutiny Review on Wards Corner (25 November 2019), paragraph 8.35: 'The Assistant Director for Planning told the Panel that she regretted not realizing early enough that there was a problem with the market facilitator role and that it would have been better if she had been alerted to this by the Regeneration department.’ (Haringey has stated that it does not consider 'that there was failure to monitor the s. 106 agreement'. (Haringey Council, Report for Cabinet - 21 January 2020: Wards Corner - Response to the Overview and Scrutiny and the Housing and Regeneration Scrutiny Panel Recommendations, appendix 2)) UPDATE: SEVEN SISTERS REGENERATION SCHEME-05.08.21 After nearly two decades of work to try to deliver new housing, new shops, new jobs and a new local market to Seven Sisters, Grainger has taken the difficult decision not to proceed with the Seven Sisters Regeneration project. This decision is due to the rising cost to deliver the scheme caused by several factors: the drawn-out nature of implementing the scheme owing to numerous legal challenges from a small but vocal minority, the complexity of the site and the changing economic environment.