Proper planning purposes for section 106 agreements are the focus of a high court challenge to the grant of permission for a 146-home development, under which the developer agreed to pay almost £4m to a neighbouring mushroom farm in a West Sussex village.
Abingworth Developments plans to build 146 dwellings, including for the open market, 51 homes for the 55-plus age group, 12 affordable homes, 20 key worker properties, and other facilities including a village hall with a shop and doctor’s surgery on the Abingworth Nurseries site at Storrington Road, Thakeham, West Sussex.
As a condition of its permission, granted in April 2013, it entered into a section 106 agreement to pay £3.75m and transfer more than 30ha of land to Monaghan Mushrooms, which will operate the mushroom farm approved at the same time.
However, a conservation body opposed to the residential development claims that Horsham District Council wrongly approved it on the basis of the section 106 agreement, which it brands as an attempt to buy planning permission.
Robert Fookes, representing Thakeham Village action, argued that Horsham District Council took into account an irrelevant consideration in granting permission in April 2013.
He said that the two applications are linked by a section 106 planning obligation requiring the residential developer to pay £3.75m to the occupier of another site to subsidise that company’s business, which the council had referred to throughout as “enabling development”.
However, he argued that while enabling development has been allowed in other cases where the financial contribution funds public works to building development such as heritage assets, publicly accessible buildings or sports facilities, here the purpose is limited to subsidising a private company with no control over its future commercial and employment decisions.
He said: “In the present case, residential development proposed by this application is contrary to the development plan. The reason for the payment offered is to offset that planning objection. That is an unlawful approach.
“It is not considering the two parts (in this case applications) separately and taking account of an obligation that has nothing to do with the residential application apart from the fact that it is offered by the developer.
“It was therefore an irrelevant consideration which it was wrong for the defendant to have taken into account in granting planning permission.
“No connection with development on the commercial site, beyond the payment of money, has been put forward. It amounts to no more than an attempt to buy planning permission. The decision to grant permission was, therefore, unlawful.”
He argued that the requirement for £3.75m to be paid and land transferred to another development is contrary to the Community Infrastructure Levy Regulations 2010, which require a planning obligation to be necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to the development.
He also argued that to allow a development that is contrary to the development plan because it would fund the private development of other land for the benefit of a private company is not a relevant or lawful purpose.
He said: “It would amount to local authority funding or facilitating funding of one company which is in competition with other companies. It would amount to a form of impermissible state funding.”
And he claimed that the section 106 obligation and the grant of permission do not actually achieve the intended aim of providing employment because, upon transfer of the land and completion of the works, nothing requires Monaghan to remain on the site, or to generate any business there.
The group also claims that the council failed to require an Environmental Impact Assessment prior to the grant of permission for a large housing development that will increase the size of the village by more than 50%.
In its reasons for granting permission, the council concluded that the departure from the development plan was justified by material considerations because the proposals are in the long terms interests of the community and ensure that a significant local business modernises its operations with anticipated reduction in odour and protection of existing and future employment opportunities, supporting the local economy and meeting requirements for residential accommodation.
Lindblom J is expected to reserve judgment in the case.
R (on the application of) Thakeham Village Action Ltd v Horsham District Council Administrative (Lindblom J) 6 November 2013
Proper planning purposes for section 106 agreements are the focus of a high court challenge to the grant of permission for a 146-home development, under which the developer agreed to pay almost £4m to a neighbouring mushroom farm in a West Sussex village. Abingworth Developments plans to build 146 dwellings, including for the open market, 51 homes for the 55-plus age group, 12 affordable homes, 20 key worker properties, and other facilities including a village hall with a shop and doctor’s surgery on the Abingworth Nurseries site at Storrington Road, Thakeham, West Sussex. As a condition of its permission, granted in April 2013, it entered into a section 106 agreement to pay £3.75m and transfer more than 30ha of land to Monaghan Mushrooms, which will operate the mushroom farm approved at the same time. However, a conservation body opposed to the residential development claims that Horsham District Council wrongly approved it on the basis of the section 106 agreement, which it brands as an attempt to buy planning permission. Robert Fookes, representing Thakeham Village action, argued that Horsham District Council took into account an irrelevant consideration in granting permission in April 2013. He said that the two applications are linked by a section 106 planning obligation requiring the residential developer to pay £3.75m to the occupier of another site to subsidise that company’s business, which the council had referred to throughout as “enabling development”. However, he argued that while enabling development has been allowed in other cases where the financial contribution funds public works to building development such as heritage assets, publicly accessible buildings or sports facilities, here the purpose is limited to subsidising a private company with no control over its future commercial and employment decisions. He said: “In the present case, residential development proposed by this application is contrary to the development plan. The reason for the payment offered is to offset that planning objection. That is an unlawful approach. “It is not considering the two parts (in this case applications) separately and taking account of an obligation that has nothing to do with the residential application apart from the fact that it is offered by the developer. “It was therefore an irrelevant consideration which it was wrong for the defendant to have taken into account in granting planning permission. “No connection with development on the commercial site, beyond the payment of money, has been put forward. It amounts to no more than an attempt to buy planning permission. The decision to grant permission was, therefore, unlawful.” He argued that the requirement for £3.75m to be paid and land transferred to another development is contrary to the Community Infrastructure Levy Regulations 2010, which require a planning obligation to be necessary to make the development acceptable in planning terms, directly related to the development and fairly and reasonably related in scale and kind to the development. He also argued that to allow a development that is contrary to the development plan because it would fund the private development of other land for the benefit of a private company is not a relevant or lawful purpose. He said: “It would amount to local authority funding or facilitating funding of one company which is in competition with other companies. It would amount to a form of impermissible state funding.” And he claimed that the section 106 obligation and the grant of permission do not actually achieve the intended aim of providing employment because, upon transfer of the land and completion of the works, nothing requires Monaghan to remain on the site, or to generate any business there. The group also claims that the council failed to require an Environmental Impact Assessment prior to the grant of permission for a large housing development that will increase the size of the village by more than 50%. In its reasons for granting permission, the council concluded that the departure from the development plan was justified by material considerations because the proposals are in the long terms interests of the community and ensure that a significant local business modernises its operations with anticipated reduction in odour and protection of existing and future employment opportunities, supporting the local economy and meeting requirements for residential accommodation. Lindblom J is expected to reserve judgment in the case. R (on the application of) Thakeham Village Action Ltd v Horsham District Council Administrative (Lindblom J) 6 November 2013