Town and country planning – Planning permission – Community infrastructure levy – Defendant local authority granting planning permission for development including community hall – Claimant neighbour seeking permission to apply for judicial review – Whether proposed development breaching Community Infrastructure Levy Regulations 2010 – Whether community hall being necessary to make development acceptable in planning terms – Application dismissed
The defendant local authority granted planning permission to the interested party for the erection of a building including excavation works to provide three basement storeys and six above ground storeys for mixed use purposes including up to 79 residential units, retail shops, restaurants, multi-purpose community hall, community space, cycle and car parking, servicing, landscaping, plant and other works on a site known as the Moxon Street car park in Marylebone, W1.
The proposed scheme departed from the defendants’ planning brief as it contained no educational provision. All the floors above ground level would be used for residential purposes (a mix of market and affordable housing), while the ground floor and the first basement level would accommodate shops and community uses, including a community hall which on Sundays would form the central part of a farmers’ market with parts of the surrounding streets. Car parking would be provided in the basement.
The permission granted was subject to an agreement under section 106 of the Town and Country Planning Act 1990 whereby the interested party entered into an obligation to lease the community hall within the scheme to the defendants at a peppercorn rent. The community hall was to be provided prior to first occupation of a residential unit, and leased for 125 years for social and community use (paragraph 14(ii)).
The claimant, a neighbouring occupier, sought permission to apply for judicial review of the decision to grant permission. A “rolled-up” hearing was ordered. The claimant contended that the provisions in paragraph 14(ii) were in breach of regulation 122 of the Community Infrastructure Levy Regulations 2010, on the basis that it was not necessary to provide the community hall to make the development acceptable in planning terms.
Held: The application was dismissed.
(1) The test of necessity in regulation 122(2)(a) was originally not a test in law of the materiality of a planning obligation. It was a test of policy. The test of materiality in law was hitherto that to be material, the provisions in a section 106 obligation: (a) had to have a planning purpose; (b) be related to the permitted development; and (c) not be Wednesbury unreasonable. It followed that there were now tests in law which to some degree were not tests of law before their enactment. It was clear that the question of what was necessary was now a test in law, which it was not beforehand. The regulation was part of a codification of principles developed in the case law but included matters which were drawn from previous tests of policy, which had been expressly rejected by the courts as tests in law of materiality: R v Plymouth City Council, ex parte Plymouth and South Devon Co-operative Society Ltd [1993] EGCS 113; [1993] 67 P & CR 78, Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147, Welcome Break Group v Stroud District Council [2012] EWHC 140, R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878 and Oxfordshire County Council v Secretary of State for Communities and Local Government [2015] EWHC 186 (Admin); [2015] PLSCS 43 considered.
(2) In this case, the provisions of the section 106 agreement made the community hall available to the defendants as a way of ensuring that best use be made of it for community purposes. The claimant had not suggested any other way of achieving that end. Given that the claimant had no objection to the mechanism of the lease to the defendants, it followed that it was directly related to the development. It was also plainly for a planning purpose, namely to see the community hall part of the development put to best use and effectively managed. Further there was no suggestion, nor could there be, that it did not fairly and reasonably relate in scale and kind to the development.
(3) The terms of the officer’s report showed that he was approaching the question of whether it was necessary on the basis that the community benefit realised by provision of the community hall compensated for the fact that there would be an under provision of affordable housing. That was a planning judgment which the defendants were entitled to make. Matters of weight and of planning judgment were for the decision maker, and the officer and his council were perfectly entitled to think that the gain in one area made up for the loss in another. The exercise of judgment such as that was what had to happen when local planning authorities had to deal with planning applications in the real world. In the sense used in regulation 122, the section 106 obligation was necessary, because it provided a countervailing benefit to set against the disadvantage of the under provision of affordable housing.
(4) Under section 70 of the 1990 Act, the defendants were required to have regard to the development plan and to all material considerations and, by virtue of section 38(6) of the Planning and Compulsory Purchase Act 2004, it was required to determine the application in accordance with the development plan unless material considerations indicated otherwise. There was no suggestion that it failed in either respect. It was plainly material that the obligation in the section 106 agreement would lead to the most effective use of the community hall. The claim was without merit and permission to apply for judicial review would be refused.
Alexander Booth QC and Rebecca Clutton (instructed by K and L Gates LLP) appeared for the claimant; Saira Kabir Sheikh QC and Charles Streeten (instructed by Tri Borough Shared Legla Services) appeared for the defendants; Russell Harris QC and Richard Turney (instructed by Linklaters LLP) appeared for the interested party.
Eileen O’Grady, Barrister