It is settled law that, where two planning permissions exist in respect of the same land, a developer – as a matter of general principle – may choose which to implement. He has a choice, unless and until steps taken in pursuance of one planning permission make it impossible to implement the other planning permission, where the two planning permissions are for inconsistent developments. This rule was the basis for the decision at first instance in R (on the application of Robert Hitchins Ltd) v Worcestershire County Council [2015] EWCA Civ 1060.
In that case, the local planning authority (“LPA”) had granted planning permission to the respondent for the erection of around 200 dwellings and associated works on the application site, on the respondent entering into a section 106 agreement binding it to make set staged contributions towards a local transport strategy.
The respondent subsequently applied again to the LPA for planning permission, in identical terms save for the offer of any such contributions. The LPA failed to determine the second application, and the respondent appealed successfully to the Secretary of State. The inspector granted planning permission, but concluded that a similar planning obligation would not meet the requirements of regulation 122(2) of the Community Infrastructure Regulations 2010.
The High Court held that the respondent, and any subsequent owner of the application site, was entitled to choose under which planning permission it wished to proceed, and that on electing to proceed under the second planning permission it could not lawfully be required to pay any further contributions under the section 106 agreement. It went on further to hold that, on the facts, the respondent’s successor in title to the application site had elected to proceed under the second planning permission. The appellant highway authority appealed.
The Court of Appeal dismissed the appeal, confirming the correctness in law of the principle stated above. Furthermore, the appeal judges agreed that the judge at first instance had been entitled to find that the respondent’s successor was free to elect to continue and complete the development under the second planning permission – rather then under the first planning permission – and that it had, on the evidence available, elected to do so. Accordingly, from that point on no further payments could lawfully be demanded under the section 106 agreement.
John Martin is a planning law consultant
