Validity of s.106 payment as enabling development

In R (on the application of Thakenham Village Action Ltd) v Horsham District Council [2014] EWHC 67 (Admin), Lindblom J considered the validity of a section 106 planning agreement which required a payment to be made by the applicant. The issue was that the payment would, however, be applied to a site not included in the application for planning permission.

The claimant action group applied for judicial review of the Council's grant of planning permission for the redevelopment of part of a mushroom farm into an estate of 146 residential units. The farm had operated for many years from two large sites within a village. The business was failing and it was proposed to consolidate the operations onto one of the sites. The other site would then be turned into a residential estate.

The action group's claim was that the Council had failed to assess properly whether the residential development proposal required an environmental impact assessment (EIA). If it went ahead, the residential development would be contrary to the Development Plan, and the screening opinion of the Council - which stated that an EIA was not required - failed to address the nature, size and location of the residential development.

The action group also alleged that the planning agreement, which required a payment from the residential developer to part-fund the relocation of the mushroom farm to the second site, was an attempt to buy permission for the residential development.

The claim for judicial review was refused. The court held that:

  • The Council had considered the two developments separately, but had also noted that - together - they were a comprehensive scheme.
  • The screening opinion had to be read in the context of the letter requesting it. The letter had provided all the information needed by the Council.
  • A payment provided in relation to one site, in order to enable another development to proceed, could be a material consideration in the determination of a planning application, but only where there was sufficient connection between the two sites.

In this case, the aim of securing the mushroom farm in the village, and the jobs it produced, was a proper planning consideration. The Council's approach to the residential site as development enabling the farm business was legitimate - R (on the application of Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2010] considered.

Power to decline a planning application

For some years, local planning authorities have had the power to decline to determine a planning application where the applicant has made a previous similar application in relation to the same land: section 70A of the Town and Country Planning Act 1990.

Guidance, issued at the time the power was introduced, stated that authorities should use the power only where they believed the applicant was trying to wear down resistance and opposition to the application: paragraph 8, Circular 08/2005. However, where a subsequent application was genuinely trying to address issues on which a previous refusal was based, the authority should determine the later application.

In R (on the application of Skillcrown Homes Ltd) v Dartford Borough Council [2014], Skillcrown applied for judicial review of the Council's decision to decline to determine an application.

In September 2010, Skillcrown applied for permission to build eight houses. Following a refusal, it appealed. A planning inspector granted permission in 2011, but that permission was quashed and the decision remitted back to the Secretary of State. Another inspector refused the appeal in 2012 on the basis that the development was not sustainable.

Skillcrown made a fresh application in April 2013. The authority considered that it was very similar to the original, with the only differences being a revised planning statement and a survey. The authority therefore refused to consider the application.

Skillcrown made an application for judicial review of that refusal, making three allegations of irrationality against the authority. Singh J dismissed two of the grounds, but found that the authority had erred on the third: they had failed to take into account paragraph 8 of the guidance. He acknowledged that the authority was not bound to follow it, but held that it was a material consideration. To which end, if the authority did not want to follow the guidance, they must set out reasons for that decision.

The Court added that authorities should remember that Parliament had conferred a power that was discretionary. Even where the pre-conditions for the exercise of the power were satisfied, an authority was not obliged to exercise the power; but it could choose to do so.

Listed Buildings - statutory power to consider preservation of setting

When determining planning applications affecting a listed building, planning authorities must have special regard to the desirability of preserving that building, or its setting, or any features of special architectural or historic interest: section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1991.

In North Norfolk District Council v Secretary of State for Communities and Local Government [2014] EWHC 279 (Admin), the Council applied to quash the decision of an inspector, appointed by the Secretary of State on appeal. The inspector granted permission for a wind turbine in the vicinity of a number of listed buildings. The principal ground of appeal was that the inspector had failed to carry out the duty in s.66(1).

The court found that the inspector's decision letter had carried out a balancing exercise, weighing the harm to the significance of heritage assets against the benefits from the development. However, that exercise did not discharge the s.66(1) duty requiring "special regard" to be given. Because it was not possible to know, from the contents of the decision letter, whether the decision would have been different had the inspector had given "special regard" to the setting of the listed buildings, the grant of permission would be quashed.