In January of this year, planning permission was granted for "New Lubbesthorpe", a substantial development of 4,250 new dwellings to the south west of Leicester.

During the negotiations of the s.106 agreement, the level of contributions towards police resources had been agreed (despite reservations as to their compliance with CIL Reg 122) but there was disagreement over the timing. The police were of the view that the payments would be needed during Phase 1 of the development, however, the Council agreed a later timing with the developer.The police were also unhappy with the provision in the s.106 agreement that the obligation to contribute towards a new police premises would be subject to a viability review.

The police subsequently applied for judicial review of the decision to grant the permission. It was argued on behalf of the police that they had been left out of the final stages of negotiations and that (1) the s.106 did not achieve adequately-secured and appropriately-timed contributions towards police resources so as to properly mitigate the impact of the development; and (2) that the police had a legitimate expectation that the Council would consult them on the level and timing of the contributions.

The judge commented that the challenge was not a "quibble about a minor factor". Those living in the area would want to know that the police were adequately resourced. However, it was held the Council had considered the matter properly and reached a "rational and sustainable conclusion" even if it was one with which not everyone would agree. The threshold of irrationality had therefore not been met.

The judge accepted that a course of dealing can give rise to a legitimate expectation that a particular process will be followed. In this case, there had been a pattern of negotiation between the developers and the police, with the Council as the intermediary. No unequivocal representation had been made that the police would be consulted on the level and timing of the contribution. The police made representations, which the evidence suggests were considered by the Council, and that was the most that the police could have legitimately expected.

Following this decision, it will be interesting to see if the police and similar bodies have difficulty in arguing for a greater role in the negotiation of s.106 agreements. Whilst they must be consulted and their views considered, decisions on the content of the s.106 obligations are ultimately to be taken by the local planning authority.