Unilateral Undertakings – the importance of conditional drafting
Following the case R(Millgate Development Ltd) v Wokingham BC EWHC6 it became especially important to take care that Unilateral Undertakings ("UU") were stated to be conditional if relevant.
As was normal practice, the UU, in that particular instance, had been expressed to be conditional upon grant of planning consent and implementation but nothing had been added to make it clear that the disputed financial contributions were also to be conditional upon the Inspector's decision. As a consequence, although the Inspector agreed that the financial contributions were not necessary the UU nonetheless took effect.
In a recent appeal, where we were successful in securing a conditional UU (Ref APP/A5840/A/14/2226701), the Inspector agreed with our arguments that an affordable housing contribution did not meet the statutory tests that made it "necessary" and did not relate fairly and reasonably in scale and kind to the proposed development.
We would advise, therefore, that when drafting a UU which will contain disputed provisions that within the relevant clause dealing with "Legal Effect" you add such drafting as to make it crystal clear which clauses or schedules are conditional and expressly state that they are only to take effect if the Inspector decides at appeal that the relevant obligation(s) are "reasonable and necessary."