Regulation 122 of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may only constitute a reason for granting planning permission for a development if the obligation is: (a) necessary to make the development acceptable in planning terms, (b) directly related to the development, and (c) fairly and reasonably related in scale and kind to the development. The provision reflects the Secretary of State’s policy tests most recently stated as such in Circular No, 05/05: Planning Obligations. Therefore, a policy that was originally intended to stop developers from offering wide-ranging inducements – which may amount to the buying of planning permission – is now enshrined in law.
In Persimmon Homes North Midlands Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3931 (Admin) a developer appealed under section 288 of the Town and County Planning Act 1990 against the decision of an inspector on a planning appeal to refuse planning permission for 200 units of residential accommodation. The adopted core strategy for the area where the appeal site was situated provided for a “sustainable urban extension” (“the SUE”) of 2,000 homes, together with the necessary community infrastructure to support the new residents including shops, schools and medical care facilities. No piecemeal developments were to be permitted. There was an underlying area action plan, but only in the course of preparation.
The developer had offered a planning obligation meeting the cost of some identified infrastructure requirements but not those related to the wider highway network and educational facilities. The inspector concluded that the local planning authority’s concerns that the preliminary nature of the proposals for the SUE made it impossible to calculate contributions for the overall infrastructure scheme were valid. Absent, the area action plan, it was not possible to conclude that the developer’s planning obligation represented a fair proportion of the overall infrastructure costs. The developer’s main ground of appeal was that the inspector had failed to understand the law properly.
The court dismissed the appeal, concluding that the inspector’s approach was clearly correct and justified the refusal of planning permission. He had not failed to understand the law. The judge pointed out that what Regulation 122 refers to is that which is necessary to make the development acceptable in planning terms. To determine this, one had to have regard to the development plan. This in turn brought in the core strategy and the emerging area action plan.
John Martin
