Planning obligations requiring the transfer of land and the “directly related” test
Paragraph 204 of the NPPF states that a planning obligation should only be sought where it meet all of the followings tests, namely it is (1) necessary to make the development acceptable in planning terms, (2) directly related to the development, and (3) fairly and reasonably related in scale and kind to the development. Additionally, and even more importantly, regulation 122(2) of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may only constitute a reason for granting planning permission where identical tests to those above are satisfied.
Where the planning obligation involves the transfer of land, and that land is included in the proposed development, establishing whether the planning obligation is directly related to the development may not be a difficult task. But where the land being transferred is some way away from the proposed development site, and there are no proposals for its development, the task becomes that much more difficult.
Paragraph 204 of the NPPF states that a planning obligation should only be sought where it meet all of the followings tests, namely it is (1) necessary to make the development acceptable in planning terms, (2) directly related to the development, and (3) fairly and reasonably related in scale and kind to the development. Additionally, and even more importantly, regulation 122(2) of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may only constitute a reason for granting planning permission where identical tests to those above are satisfied.
Where the planning obligation involves the transfer of land, and that land is included in the proposed development, establishing whether the planning obligation is directly related to the development may not be a difficult task. But where the land being transferred is some way away from the proposed development site, and there are no proposals for its development, the task becomes that much more difficult.
In R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 (Admin) the claimant sought to quash outline planning permission granted by the local planning authority (“LPA”) for extensive new rugby club facilities, together with enabling residential development, on a site in the open countryside several kilometres from the site of the existing ground belonging to the club that was intended to occupy those new facilities. One of the claimant’s grounds of challenge was that the LPA had erred in regarding as a material consideration a planning obligation obliging the club to transfer its existing ground to the LPA for a nominal sum. It contended, in particular, that the planning application was not directly related to the development.
The court rejected that argument. There was clear authority for the proposition that planning decision-makers may take off-site benefits into account, where such benefits are related to the development in a real, as opposed to a fanciful, way. Whether there is such a relationship will always be fact specific. Here the existing ground was located in a functional flood plain, and had no development value other than for sports usage. For the club, it would become a liability. There was, however, a need to retain it for continued public amenity as sports fields. Sport England had stressed this to the LPA. Placing the ground into the ownership of the LPA would secure that. The LPA had accordingly not erred in treating the planning application as a material consideration.
John Martin
