AC-2024-LDS-000251 - [2025] EWHC 2256 (Admin)

The LPA and the developer responded to those observations by entering into a second supplementary planning obligation on 27 February 2025 (SPO (2)) and relying on it in their detailed grounds of resistance. Again, it is itself a further section 106 agreement. Clause 3 of SPO (2) provides as follows:

“3.1

The Owner [developer] and the Council [LPA] agree that the first paragraph of clause 3.1 of the Supplemental Deed [SPO (1)] shall be deleted and replaced with the following paragraph:

‘The Owner covenants with the Council that notwithstanding Clause 3.2 of the Original Agreement the Owner shall not begin the Development (within the meaning of Section 56 of the 1990 Act) or otherwise undertake any works associated with the Development including the works identified as "enabling works" in Condition 1 of the Planning Permission or otherwise commence clearance of hedgerows, trees and shrubs, or any other features of potential ecological importance within the Site, until:’

3.2.

The Owner and the Council agree that a new Clause 3.3 shall be inserted into the Supplemental Deed as follows:

‘3.3 For the avoidance of any doubt the Owner and the Council agree that the reference to "the pre-development biodiversity value" in the definition of "Biodiversity Assessment" in paragraph 1.1 of Schedule 5 of the Original Agreement is and shall be interpreted as a reference to the biodiversity value of the Site prior to the earlier of i) the beginning of the Development (within the meaning of Section 56 of the 1990 Act), ii) the undertaking of any works associated with the Development including the works identified as "enabling works" in Condition 1 of the Planning Permission, and, iii) the commencement of the clearance of hedgerows, trees and shrubs, or any other features of potential ecological importance within the Site.’”