The Queen on the application of Millgate Developments Ltd -v- Wokingham Borough Council

In a case that could easily have been avoided by better drafting, the High Court upholds a local planning authority’s right to enforce the terms of a unilateral undertaking even though a planning inspector had concluded that the contributions were unnecessary.

Case Summary: The case involved an application for residential development which was refused by the LPA for several reasons, including the failure to conclude a suitable planning obligation under section 106 of the Town and Country Planning Act 1990.

The developer successfully appealed and in the course of the appeal gave a unilateral planning obligation undertaking to make various financial contributions towards the provision of infrastructure. The undertaking was expressed to be conditional on the grant of planning permission and the implementation of development.

In granting the appeal, the planning inspector held that the LPA had failed to show that the financial contributions were justified by local and national planning policy. He therefore found the contributions to be, “unnecessary” and placed, “little weight” on the unilateral undertaking.

Despite the inspector’s findings, the LPA indicated that it intended to enforce the terms of the undertaking fully and would be requiring the financial contributions to be paid in full on commencement of development. The developer sought to challenge the LPA’s intention to enforce the terms of the undertaking in light of the inspector’s finding that the contributions were unnecessary but the High Court resoundingly rejected all three grounds of challenge and upheld the LPA’s right to enforce the undertaking.

Comment: This was an entirely predictable decision that rightly distinguishes between the separate issues of whether a planning obligation is necessary in planning terms and whether it is legally enforceable. What is perhaps more surprising is that the situation could easily have been avoided by better drafting of the undertaking in the first place. Where the justification for a particular obligation is in dispute in a planning appeal the planning obligation ought to be made conditional on the inspector holding it to be necessary. Such wording would have prevented the LPA from enforcing the obligations in this case.