Royal Borough of Kingston Upon Thames Council refused an application for planning permission for the redevelopment of the former Government Offices at King George's Gate to provide a residential led, mixed-use scheme comprising buildings ranging from 3 to 18 storeys, providing 705 residential dwellings, a doctors surgery and day nursery with associated car park and bus interchange. On 20 October 2016, this appeal was recovered by the Secretary of State's determination (s.79 Town and Country Planning Act 1990.)

The Secretary of State agreed with the Inspector's conclusions and upheld the recommendation to dismiss the appeal and refuse planning permission. To reach his decision the Secretary of State had regard to s.38(6) of the Planning and Compulsory Purchase Act 2004 which requires proposals to be determined in accordance with the development plan unless material considerations indicate otherwise.

The refusal of planning permission was because the s.106 Unilateral Undertaking (UU) was considered to be deficient in terms of the obligations offered. It did not contain all the necessary obligations to make it acceptable in planning terms, especially in relation to the affordable housing provision, the contribution to the strategic roundabout works and guaranteeing the provision of other necessary obligations. Without such obligations being guaranteed through an appropriate UU, the development as a whole was unacceptable and would not comply with the thrust of development plan policy. However, the Secretary of State considered that the deficiencies identified could be resolved by the submission of an amended S106 UU, and concluded that planning permission should not be granted until the deficiencies are resolved.

This is an important reminder to developers that when submitting s106 unilateral undertakings as part of an appeals process care must be taken to ensure it contains all of the relevant provisions and mitigations required to make the development acceptable in planning terms.

The full decision can be read here.