Claimant builder and defendant local authority entering into section 106 agreement to preserve open space — Change in circumstances leading to application to modify agreement — Inspector recommending modification — Defendant refusing to modify agreement in public interest — Application for judicial review
The defendant local authority granted planning permission to the claimant to develop a parcel of land for housing, subject to an agreement, under section 106 of the Town and Country Planning Act 1990, for the retention of a grassland area as a public open space. The building work was to be completed in two phases. When the claimant applied for planning permission to begincommence the second phase of building, it transpired that part of the first phase had encroached onto land designated as a public highway, and the defendants refused planning permission.
On appeal, the inspector found that in order to provide necessary access to the site, the claimant would have to utilise part of the land protected by the section 106 agreement, and recommended that planning permission should be granted accordingly.
The defendants refused to modify the terms of the agreement. They maintained that their discretion under section 106 was absolute, and that because the encroachment onto the reserved land was not in the public interest, they would not modify the agreement. The claimant applied for judicial review of that decision.
Held: The application was allowed.
Taken in context, a section 106 agreement forms an integral part of a comprehensive planning code. A local planning authority are granted the discretion to refuse to modify such an agreement within the first five years in order to prevent an unscrupulous developer from attempting to renege on such an agreement, but this is not an unfettered discretion. Although a decision could be reached on the basis of concern over the public interest, it is not to be exercised without due regard for planning matters.
In the instant case, the problem to be addressed had been caused by a genuine mistake made by both parties at the original planning application stage. The real question for the planning authority had been whether the obligation to retain the grassland continued to serve a useful purpose. Given the problem of access to the site and the fact that the revised development would still leave 80% of the land for public space, the answer had to be “no”. Since the defendants had made representations to the inspector at the appeal, it was perverse of them to subsequently block his findings. Although it was true that these findings were not binding upon the local planning authority, the authority were under an obligation to explain their reasons for rejecting his findings and had failed to do so. On that basis, their decision was quashed.
James Findlay (instructed by Battens, of Yeovil) appeared for the claimant; Peter Harrison (instructed by the solicitor to North Dorset District Council) appeared for the defendants.
Vivienne Lane, barrister
