This can be contrasted with a positively worded obligation, for example a TCPA obligation 1990, s106, which requires an owner to create open spaces according to a plan to be approved and possibly transfer them to the parish council with a converted maintenance fee. The person signing the agreement on behalf of an invited signatory or consenting party should be an approval authority for all responsibilities or obligations assumed under the agreement or the authority to represent the general interests of their organization. The signature page of the agreement document should identify and distinguish signatories, invited signatories and consenting parties. An agreement under section 106 is the most common form of planning agreement and is entered into under section 106 of the Town and Country Development Act 1990, also known as the `planning obligation`. Once the federal agency has entered into a fully executed Section 106 agreement, it must not only make this information available to all consulting parties, but also be subject to the confidentiality provisions of 36 CFR § 800.11(c). The Agency must then ensure that the obligation is fulfilled in accordance with the terms of the agreement. Signatories: Pursuant to 36 CFR § 800.6(c)(1), a signatory has the exclusive authority to perform, modify, or terminate the Agreement. The federal authority and the SHPO/THPO are signatories; the ACHP is also a signatory if it participated in the consultation for the agreement and in all PAs of the program. With the exception of the cases described below, their signature is almost always required for the agreement to enter into force. A THPO or other tribal representative is a required signatory to an agreement under Article 106 only if an obligation can be incurred on tribal lands or adversely affect historic lands on tribal lands. Once all signatories have signed the agreement, it will be implemented and enter into force. Section 106 agreements are used to offset the impact of development on the region.
They are used when the effects are sufficiently significant to justify that they cannot be mitigated by conditions attached to a planning decision. The liability of certain interests/parties for the performance of certain obligations arising from a contract § 106 may be excluded by the inclusion of express conditions in the contract. For example, individual buyers/users of market-based housing are usually exempt from the obligations related to the provision of affordable housing, as they are clearly beyond the control of these buyers/users. A Section 106 agreement is an agreement entered into as part of the planning process between landowners or developers and Local Planning Authorities (“LPAs”). ACHP: If the ACHP participates in the consultation on the development of the agreement, it also signs the Memorandum of Understanding or the PA as a signatory. When the ACHP participates in consultations, the Executive Director of the ACHP is generally the person who signs the agreement on behalf of the ACHP. In certain situations, the President of the BAHP may sign the agreement for the BAHP. `(1) Any person having an interest in land in the territory of a local planning authority may, by agreement or otherwise, enter into an undertaking (referred to in this Section and in sections 106A and [106C] as a “planning obligation”) which is enforceable to the extent referred to in subsection (3). Take, for example, a situation where land is leased to a long-established institutional tenant with a 999-year lease, with no possibility of withdrawal, and the obligations to be secured by the agreement are the payment of a contribution in instalments at the beginning and then on the fifth anniversary of the agreement.
If the authority understands the terms of the lease and is happy that the tenant is good for the contribution, there seems little point in insisting that a reluctant landlord sign up as well. If the tenant were to assign or sublet, the new occupant would be bound as someone who pulls the property from the obligating tenant. However, if the lease allowed for breaks, then there would be a much clearer argument for the planning authority to have the landlord on the hook to ensure that future tenants are also caught. At the heart of an LPA is the applicability of planning obligations and ensuring that the appropriate parties are “accountable” for meeting obligations. When determining which parties with interests in land are required to sign an agreement under Article 106 (and which parties are required to comply with certain planning obligations under the express terms of the agreement), a LPA must ensure that there is no “exit” from the performance of a party concerned. The content of commitments should be examined in their entirety in terms of which parties have the capacity to implement the approval and which parties (and their successors in title) should be responsible for compliance with certain obligations. It may be necessary to consider whether the commitments require a one-time service or apply throughout the life of a development. One of the complaints raised by the applicant was that the agreement was legally deficient, since it did not bind the entire development site.
The General Court rejected that plea. It was stated that the agreement complied with all the formalities and legal requirements set out in section 106 of the 1990 Act and that there was nothing in section 106 to bind all material interests in the development site. The court stated that McLaren could maintain its objection to redeveloping its portion of the development site or selling its interest and that discussions among the landowners as to whether the McLaren land could actually be used and therefore whether the development could ever be built were not essential to the LPA`s decision to grant the permit. McLaren was not harmed by the conclusion of the S.106 agreement and the granting of the building permit. Guest Signatory: Pursuant to 36 CFR § 800.6(c)(2), an invited signatory has the authority to modify and terminate the Agreement upon signature. The Agency official may invite other parties to sign the agreement, such as: a Native American tribe or NHO that assigns religious and cultural significance to historic properties touched by the company (outside tribal areas), or any party that assumes responsibility under the agreement. The refusal of an invited signatory to sign the agreement does not prevent the implementation of the agreement; However, an agreement cannot impose any duty or responsibility on a party that has not signed it. If an Indian tribe or NHO is asked to be a guest signatory to an agreement for which the commitment does not take place on tribal lands or adversely affect historic lands on tribal lands, the THPO or a representative designated by the tribe or NHO may sign the agreement on behalf of the tribe or NHO. The ACHP acknowledges and accepts that some tribes may refuse to sign the agreement documents in principle, but may participate in the development of the agreement. Such decisions are a matter for Native American tribe law, and the ACHP recommends that authorities understand and accept these decisions.