The decision in R (on the application of Millgate Developments Ltd) v Wokingham Borough Council [2011] EWHC 6 (Admin); [2011] PLSCS 10 illustrates a particular risk where a developer decides to complete a planning obligation before planning permission has been granted on appeal, even one expressed to be conditional on the grant of planning permission and the commencement of the development.
In that case, the local planning authority (LPA) had refused planning permission for a residential development but had indicated in the decision notice that the objections might be overcome by a planning obligation that provided for financial contributions towards leisure, education and library facilities. The developer appealed to the secretary of state and submitted such a planning obligation – in the form of a unilateral undertaking – conditioned as above.
The inspector upheld the appeal and granted planning permission. However, in his decision letter, he expressed doubt as to whether the contributions were necessary and, having concluded that they were not he afforded the planning obligation little weight. On this basis, the developer asked the LPA to discharge the planning obligation. The LPA informed the developer that the planning obligation remained enforceable and that it would require the contributions to be made. The developer sought judicial review of that decision, its principal ground being that the LPA had acted unreasonably. A further issue was whether section 111(1) of the Local Government Act 1972 allowed the LPA to reimburse surplus sums paid to it under a planning obligation entered into in the form of a unilateral undertaking.
The court dismissed the developer’s application. The judge held that the planning obligation was enforceable in law and that the inspector’s comments concerning the weight to be attached to it were not relevant in that context. Furthermore, the obligation continued to serve a useful planning purpose. On that basis, it could not be argued that the LPA, in enforcing it, had acted unreasonably in the Wednesbury sense. Finally, the judge held that an LPA has the power, under section 111(1), to refund surplus sums paid to it under a planning obligation. This was yet a further reason for holding that the decision to enforce the planning obligation in this case was not Wednesbury unreasonable.
Possibly, the developer should have sought to make the planning obligation conditional also on the inspector concluding that it was necessary to render the development acceptable.
John Martin is a freelance writer
