This case has provided further clarity as to when a local planning authority has to decide whether to enforce a section 106 obligation and/or refuse to accept a request to modify it in circumstances where it was contended that the obligation was no longer necessary to make the development acceptable.
This case concerned a developer’s liability to pay contributions under a section 106 Agreement. The developer, Renaissance, entered into a section 106 Agreement in 2005, agreeing to make contributions to local infrastructure based on formulae in the Council’s SPG. The developer implemented the permission, and sold the completed flats. In the meantime, the developer had successfully argued on appeals relating to other properties that the Council’s formulae contained errors or resulted in excessive charges, and the Council changed its formulae in consequence. The developer paid certain sums due, but resisted the balance of £47,000 on the ground that if its contributions were calculated in accordance with the SPG in force as at 2010, nothing more would be due. The developer sought to quash the Council’s decision to sue for the sums due on the ground that it was unlawful for the Council to bring the claim because the sums due would not be payable under the current SPG, and the claim would therefore not serve a planning purpose.
The claim was dismissed by Ouseley J. He held that it was lawful for the Council to claim the sums due because they were contractually payable. There was no need for the sums payable to have any connection with the development. Even if the developer had applied to modify the Agreement under section 106A, there was no need for the Council to show that the contributions payable served the same purpose as originally intended, or any purpose connected with the development.