In Oates v Wealden District Council & Anor [2018] EWCA CIV 1304 the Court of Appeal confirmed that decision-makers may refuse planning permission for Community Infrastructure Levy (CIL)-bearing schemes where highways impacts are sufficiently serious even if the Authority has said it will use CIL receipts for related highways works.
The authority was considering an application for 390 homes on an unallocated, CIL-liable site and have significant impacts on several junctions. Regulation 123(2) of the Community Infrastructure Levy Regulations 2010 imposes a “double-dipping” restriction – planning obligations may not be a “reason for granting” permission where they secure funding or provision of infrastructure on a published list (including in most cases through “requiring a highway agreement”). Regulation 123(2A) also prohibits conditions requiring a highway agreement to fund or provide such infrastructure (or restricting development until a highways agreement is complete).
The authority’s R123 list identified highways works to the worst affected junctions as projects and types of infrastructure on which CIL would be spent. The highway authority objected to the application because critical improvement works were required there before development. The impact would be severe without guaranteed implementation and timing of the CIL-funded works.
The highway authority withdrew its objection having been advised that the applicant was right that the R123 list meant that the necessary upgrades could “only be provided through the payment of a CIL contribution” and were not within the developer’s control or any proper restriction. The LPA’s officer reported this to committee. The claimant claimed that the misdirection on the effect of the CIL Regulations – wrongly assuming that a Grampian-type restriction on development until the upgrades were complete – rendered the consent unlawful.
The Court of Appeal rejected the claim on the basis that the officer had advised that a restriction would be unjustified because the impact would be unlikely to be “severe” taking into account both build out rates and time for delivery of the infrastructure improvements funded by both CIL and other sources. She had not directly ruled out a restriction on occupation, which would have been lawful (applying Grampian Regional Council v City of Aberdeen District Council [1984] 47P&CR633 at PP636 and 637) but simply said nothing about it.
The judgment is clear that in accepting the applicant’s position, the highway authority had failed to understand the “true scope of Regulation 123” – which does not “compel[…] the Local Authority to grant permission for a proposed development if, for whatever reason, that development is unacceptable in planning terms, or if it cannot be made acceptable either by a planning obligation, or by the imposition of conditions“. Crucially, the judgment underlines the need, in most cases, to reflect CIL as a general development cost in addition to site-specific mitigation costs.
Roy Pinnock is a partner in the planning and public law team at Dentons
