Contracting in the Public Interest? Re-examining the Role of Planning Obligations in Contemporary Town Planning Processes

Abstract

This article investigates how local authorities in England seek to compel property developers to mitigate the impact of property development on local communities and on local infrastructure needs through the use of planning obligations made by agreement with developers pursuant to section 106 of the Town and Country Planning Act 1990. I pose three important new questions about these ‘section 106 agreements’. How do these agreements contribute to a development culture in which private developers do not always perform their public policy obligations? How does the presence of ostensibly binding promises in these agreements facilitate the exercise of regulatory decision-making in planning and property development processes? How do local authorities manage the implementation of novel developer obligations designed to shape broader community relations? I answer these questions by examining two case study development projects. In doing so, I highlight the limited role that these agreements have as an instrument for ordering the ‘private’ relations between a local authority and a developer. I then look outside the private ordering function of these agreements to scrutinise the public-facing work they do. Here, I highlight how a section 106 agreement carries a powerful expressive force, despite its weakness as a private ordering device, that developers and local authorities can use to justify contentious development proposals involving coercive compulsory purchase powers and potentially adverse equalities implications. The article thus adds to what is already known about the use and implementation of planning obligations, and sketches a research agenda that would inform debate about the future of this area of planning practice.