Out-Law Analysis | 09 Apr 2020 | 12:10 pm | 4 min. read
A number of solutions are available, from simply witnessing through a window to holding a virtual council meeting to amend how documents are sealed and who can seal them.
Planning obligations must be entered into by a deed which is sealed and delivered. Sealing of deeds has to be done in the physical presence of a witness. In addition, for many local authorities sealing must be done by one "authorised person" and that sealing to be witnessed by a second "authorised person".
If the planning obligations cannot be entered into unilaterally and so remove the need for the Local Planning Authority (LPA) to seal, then it will be necessary to find alternatives to securing the obligations under s106.
In both instances the journeys made into the office or to a colleague's home can be justified as essential journeys for work purposes.
Authorised personnel not available
Standing orders may give other staff (the Director of Legal or Chair, for example) the right to nominate additional officers.
Where that flexibility doesn't exist it may be possible to amend standing orders to authorise additional officers to seal and to witness sealing. The recent Coronavirus Act 2020 and related regulations will allow for virtual council meetings. This would enable changes to be made to the constitution and standing orders to authorise additional personnel.
Where the seal is inaccessible it may be possible for the council to amend its constitution for a temporary period via a virtual meeting to replace the corporate seal. The law on what constitutes a seal states it can simply be a circle added to the document with the letters LS (meaning locus sigilli – 'in place of a seal'). It would still need to be sealed by and in front of the proper officers, if that is what the constitution requires.
Although the concept of an electronic seal does exist, it is unlikely to be a permitted method of execution within the LPA's constitution, though of course once the councils have their annual meetings under the new regulations this is exactly the kind of change they could make.
The granting of planning permission for major development will be time critical to allow the applicant to start the process of discharging conditions so that work can start on site as soon as Covid-19 restrictions are lifted.
One solution could be to impose a condition requiring a s106 deed to be entered into prior to the commencement of development.
Another solution would be to enter into the s106 agreement as a simple contract. If a s106 agreement is not executed as a deed and it is executed as a simple contract then it would not bind successors in title, but it would take effect as an agreement to enter into a s106. The s106 contract would contain a requirement to enter into a s106 deed as soon as reasonably practicable and prior to commencement of development. The benefits of this are:
The above solutions could be used alone, or in combination. They could also be coupled with a requirement on the relevant site owner to consent to the making of an application to enter onto their title a restriction preventing any disposition of the site unless a covenant from the purchaser had been given to enter into the s106 deed. A unilateral notice could also be entered on the title by the LPA to give priority to the s106 contract.
The s106 contract solution outlined above is an option where the risk of non-completion outweighs the risk of a challenge based on invalid execution. But the solution is not risk proof because it is unprecedented, but the risk of challenge to the grant of planning permission is small because:
The risk to a LPA of an owner or developer subsequently refusing to enter into the s106 as a deed is also low, as the LPA could seek an order for specific performance and the court is likely to find in favour of an LPA who granted planning permission in reliance on the agreement in these extraordinary circumstances.