The Court of Appeal is being asked to rule that a developer that secured two planning permissions for the same scheme – one requiring a near £1m transport contribution, and one not – can simply choose to proceed with the cheaper option.
Robert Hitchins was granted planning permission in January 2013 for the redevelopment of the former Ronkswood Hospital site on Newtown Road, Worcester, subject to a section 106 agreement requiring the contribution to be paid in three equal instalments.
In March 2013, Robert Hitchins sold its entire interest in the site to BDW Trading Ltd for just over £7.2m and, as part of that agreement, submitted a duplicate planning application, with no obligation to make a transport contribution. The planning authority failed to determine the application in time, but, on appeal, a planning inspector granted the second permission in January 2014, taking the view that the impact on the traffic network from just this development would not be severe.
By that time, reserved matters had been approved in respect of the first permission, the development had begun and the first instalment had been paid.
But the triggers for the second and third instalments – falling due on occupation of 50% and 75% of the houses respectively – had not been reached and Robert Hitchins, which still remained liable for the contribution because of an indemnity agreed with BDW, argued successfully at the High Court that BDW had the option to proceed under the second permission.
Now highways authority Worcester County Council is seeking to persuade the Court of Appeal to overturn the November decision of Hickinbottom J, and find that, because works began under the first permission, it is still entitled to receive the further two instalments.
In written arguments before the court, John Hobson QC said that the case raises “important planning law issues” regarding the inter-relationship between two identical planning permissions, only one of which is subject to a particular section 106 planning obligation, as well as the ability of developers to transfer from one to the other after the development has begun, and so “effectively circumvent” section 106A of the Town and Country Planning Act 1990.
He said that the appeal provides the opportunity for the court directly to address the meaning of “implementation” and resolve doubts caused by the different meanings given to it in the authorities.
The Queen on the application of Robert Hitchins Ltd v Worcestershire County
Council Court of Appeal (Richards, Floyd and Sales LJJ) 13 October 2015
