s106 addresses land instability concerns in Essex

We acted for Newport Parish Council in relation to a residential development proposed on land in Newport, Essex, about which local residents had raised concerns of land stability. The issue was resolved through a S106 agreement, following Pre-Action Correspondence, avoiding the need for a Judicial Review.

The developer applied for planning permission to demolish an existing bungalow and construct five dwellings. The Parish Council objected to the proposal, raising detailed concerns regarding ground instability. The site lies on elevated land above neighbouring properties and is located close to former quarry workings. Evidence from neighbouring residents suggested that the land had experienced ground movement, creating concerns that further development could pose risks to the stability of the site and surrounding properties.

Whilst not opposed to the development in principle, the Parish Council were worried that land stability issues had not be sufficiently considered and submitted detailed written objections highlighting these issues and emphasising the need for the existing land movement to be properly assessed and the stability of the site demonstrated before development proceeded.

Despite these concerns being raised by the Parish Council and neighbouring residents, the local planning authority granted planning permission. The officer’s report acknowledged that land stability had been raised as an issue but briefly stated that it was largely a matter for Building Regulations rather than planning policy.

On behalf of the Parish Council, we sent a Pre-Action Protocol letter indicating the Parish Council’s intention to challenge the decision by way of judicial review, arguing that the authority had failed properly to address land instability as a material planning consideration in light of the National Planning Policy Framework and relevant planning guidance.

Following pre-action correspondence and negotiations with the developer and the local authority, the parties agreed a resolution without the need for contested judicial review proceedings.

The developer agreed to enter into a Section 106 planning obligation, as a unilateral undertaking, requiring a land stability survey to be carried out before any development could commence. It was agreed that the survey must be provided to the local planning authority, the Parish Council and the body responsible for building control approval in respect of the development.

To protect the Parish Council’s position while negotiations were ongoing and the judicial review deadline approached, proceedings were protectively issued shortly before the statutory time limit, with an undertaking that the claim would be withdrawn if a satisfactory planning obligation was secured. Once the Section 106 unilateral undertaking was completed, the claim was formally discontinued.

The developer also agreed to contribute towards the Parish Council’s legal costs, with an additional contribution from the local planning authority.

The agreement ensures that independent investigation of land stability will take place before development begins, addressing the Parish Council’s safety concerns while avoiding the need for substantive judicial review proceedings.

Ben Fullbrook from Landmark Chambers was instructed as counsel, providing guidance on the drafting of the Pre-Action Protocol letter.