Developers applying for planning permission for different parts of site – Council requiring agreements with developers in relation to provision of highway improvements – Applicant developer requesting to see draft agreement relating to other developer – Council issuing planning permission and notice of agreement without responding to request – Whether council adopting fair procedure
In 1996 the applicant obtained planning permission for a large area of Fradley Airfield, Lichfield, Staffordshire. It also entered into a section 106 agreement, by virtue of which it was to meet the cost of the provision of roads adjoining and feeding parts of its site.
In April 1999 the first respondent council granted planning permission to Williams Soleco (W), the second respondent, for the erection of a food-processing unit and ancillary works on an area of land at Easthill Farm, Wood End Lane, which was part of Fradley Airfield. On the same date W entered into a section 106 agreement, pursuant to which it covenanted, inter alia, to pay to the council a sum of money, which the council covenanted to apply to defined highway improvements. W also covenanted to adopt and implement a “green transport plan”, the principle of which was to reduce the traffic generated by the development by imposing restrictions in respect of the transport of workers and products in, to and out of the development at peak traffic hours.
In March 1999, after attending a number of meetings with the council, the applicant had requested a draft copy of the section 106 agreement that it believed the council to be considering making with W, in order that it might consider making representations about its terms. The applicant had received no response.
In April 1999 the applicant discovered that the council had issued a section 106 notice in respect of W’s development. The applicant appealed contending that the council had acted unfairly in not making the draft section 106 agreement available to it so that representations could be made as to the terms of the agreement. It was submitted that the applicant had a direct financial interest in those terms and in the provisions agreed to in the green transport plan, since they could adversely affect the ability of the applicant to realise the full development potential of its site.
Held: The application was dismissed.
1. The council had been performing a public function when they considered the terms upon which planning permission might be granted to W. The terms of the council’s section 106 agreement with W would indirectly be likely to affect the applicant to a significant extent. In the absence of any statutory requirement to consult, the position of the parties demonstrably required that the council engage in a consultative process with the applicant as to the basis of contribution to be obtained from W to the highway improvements. After initially consulting the applicant, the council had suggested that it would be permitted to make further representations as to the section 106 agreement to be entered into with W, and the council had thereby created a legitimate expectation that anything further that the applicant wished to submit would be considered. The council had failed to fulfil that expectation.
2. However, the applicant’s challenge to the council’s decision had required the utmost speed if its object was to be achieved without significant disruption to both the council and W, and it had not been made “promptly” within the provisions of Ord 53 r 4(1) of the Rules of the Supreme Court. In any event, the applicant had not shown that the section 106 agreement that the council had entered into with W, and the basis of its calculation, was irrational. Moreover, even if the relief sought were granted, the likelihood was that the council would settle upon the same basis of calculation that had already been used in its agreement with W.
John Taylor QC (instructed by Wilbraham & Co, of Leeds) appeared for the applicant; Ian Dove (instructed by Moseley Chapman & Skemp, of Lichfield) appeared for the first respondents; Mark Lowe QC (instructed by Wragge & Co, of Birmingham) appeared for the second respondent.
Thomas Elliott, barrister
