In his 186 page report released yesterday Planning Inspector Martin Pike rejected the Council’s multiple reasons for the original refusal, including excessive density, over-development, quality of architecture, breaching the cliff height and size & position of apartments. But he criticised “flaws in the Section 106 agreements” and recommended that the scheme go ahead if they could be re-negotiated with the local authority but refusal if they couldn't.

Section 106 agreements refer to that particular section of the 1990 Town & Country Planning Act and they are basically an agreement to deliver elements outside the planning application that are necessary to make a development acceptable in planning terms. They are increasingly used to support the provision of services and infrastructure, such as highways, recreational facilities, schools, education and health facilities etc. Sometimes they are even used to provide things that have nothing to do with the development and they are usually the source of some horse-trading between a developer and a planning authority.

At the front of the inspector’s report he recommends: “the appeal be allowed and planning permission be granted if the flaws in the section 106 agreement can be resolved; if they cannot, the appeal be dismissed”.

At the end of the report he turns this statement the other way round and recommends: “As submitted, the proposal in unacceptable and I recommend that the appeal be dismissed. If however, the flaws in the S106 obligation could be resolved, then I recommend that the appeal be allowed and planning permission granted .... “

Either way, the Inspector clearly thinks that the scheme is sound [indeed in many instances he praises it] but the ancillary obligations need to be tweaked to make sure that they are delivered.

The sticking point for these section 106 agreements is the absence of Asda and McDonalds as parties to the obligations contrary to government guidance [Circular 05/2005] which advises that all who have a legal interest in the land, including the freeholder and any lessees, should be bound into the section 106 Deed. Also, given the complexity of the proposed development, he wants to see more effective sanctions to ensure compliance.

This leaves the developer – Explore Living - with a number of choices. They could walk away, having spent millions of pounds on the planning application and the appeal. They could try to resolve the issues with the section 106 or challenge the Secretary of State in the High Court. Or they could submit another planning application, identical to the original but with greater clarity and surety about the section 106 agreements.

This latter course of action would make it difficult for the local authority to refuse consent again, at least on any grounds that have already been dealt with by the inspector and received his seal of approval [practically all of them]. Of course, another planning application will cost more money although not as much as the first.

Explore Living are said to be considering the Secretary’s adjudication and the Inspector’s report before deciding what to do next.

Click here to download Planning Inspector's conclusions & recommendations