Town and country planning — Planning permission — Community infrastructure levy (CIL) — Claimant local authority making claim for administration fees for monitoring and enforcing planning obligations — Inspector appointed by first defendant secretary of state refusing claimant — Claimant applying to quash inspector’s decision — Whether inspector misinterpreting “necessity” test and making irrational decision — Whether inspector giving inadequate reasons — Application dismissed
The second defendant applied to the sixth defendant district council for planning permission for 26 residential units at a site off Banbury Road, Adderbury, Oxfordshire. The application fell within the administrative area of the claimant county council. The application was refused by the sixth defendants on the six grounds. The sixth ground was that, in the absence of a satisfactory planning obligation, the sixth defendants could not be satisfied that the necessary infrastructure would be provided. The second defendant appealed against that refusal under section 78 of the Town and Country Planning Act 1990.
During the course of the appeal, the claimants, the sixth defendant, the second defendant and the third, fourth, and fifth defendants, who were the owners of the site, entered into an agreement under section 106 of the 1990 Act. That agreement included contributions towards education, libraries, waste management, museums, adult learning, day care, public transport and administration/monitoring required by the claimants, and further contributions required by sixth defendant, including a monitoring fee of £3,000. The sixth defendant was satisfied that the sixth reason for refusal was resolved by the terms of the agreement.
The agreement also included a clause enabling the inspector to strike out contributions that did not meet the tests for planning obligations set out at regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948). In his decision letter, the inspector concluded that the payment of a monitoring/administration fee was not necessary to make the development acceptable in planning terms. Consequently, the claimants were unable to enforce payment of the monitoring/administration fee.
The claimants applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of the inspector that the administration fees claimed by them did not comply with regulation 122 of the 2010 Regulations. The claimants contended that the inspector had: (i) erred in his approach to regulation 122 of the 2010 Regulations by misinterpreting the “necessity” test which led to an irrational decision in finding that, although the obligations in the section 106 agreement had been necessary, monitoring of the obligations had not been; and (ii) not complied with the duty to give adequate reasons.
Held: The application was dismissed.
(1) It was part of the claimants’ functions as a local planning authority to administer, monitor and enforce planning obligations in section 106 agreements. Although the planning obligations here related to non-planning functions (education and libraries), the claimants were exercising their planning functions when addressing the impact of the proposed development on the need for public services in the local community. The inspector was entitled to conclude that the costs of administration and monitoring would be included in the claimants’ resources and budget for the discharge of its functions under section 106. How those costs would be met was plainly a relevant consideration in deciding whether or not a contribution to those costs was needed, in order to make the development acceptable.
This was a routine planning application for a relatively small development in which the claimants were seeking a fee based on its standardised table of fees rather than any individualised assessment of special costs liable to be incurred for this particular development. The only allowable contributions (education and library services) did not require ongoing management or maintenance; they were single payments, to be made prior to the commencement of development. The inspector would have been aware that the agreement provided for the claimants to recoup any enforcement costs from the developer in the event of non-payment. In those circumstances, the inspector was entitled to conclude that a contribution to the administration and monitoring costs was not necessary to make the development acceptable in planning terms. Moreover, just because the claimants’ administration and monitoring role related to matters to which the developer was required to contribute, it did not follow that the inspector had to reach the same conclusion in respect of the administration and monitoring costs. He was entitled to conclude that the increase in the number of residents did make it necessary for the developer to contribute to the additional costs of provision of local education and library services, in order for the development to be acceptable in planning terms, and that the development would then be acceptable in planning terms, even though the claimant (not the developer) would have to bear the relatively minor administration and monitoring costs which would be incurred as part of its functions as a planning authority. That was an exercise of planning judgment and the inspector’s decision did not disclose any error of law: he had not misinterpreted the legal test, nor had he acted irrationally: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147, Persimmon Homes North Midlands Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3931, R (on the application of Welcome Break Group Ltd) v Stroud District Council [2012] EWHC 140 (Admin) and R (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 considered.
(2) The inspector was under a statutory duty to give reasons for his decision under rule 19 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000. By section 288(5)(b) of the 1990 Act, the High Court might only quash a decision if satisfied that “the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it”. In the present case, the claimants had not been prejudiced by the paucity of the inspector’s reasoning. This was a short and discrete point and it was obvious to all parties what the basis of the inspector’s reasoning had been. The claimants had sufficient understanding of the reasons for the decision to enable them to decide whether or not to apply to the High Court and to present a fully-argued application: South Bucks District Council v Porter (N0 2) [2004] 1 WLR 1953 applied.
Nathalie Lieven QC and Andrew Parkinson (instructed by Oxfordshire County Council Legal Services) appeared for the claimants; Richard Kimblin (instructed by the Treasury Solicitor) appeared for the first defendants; the second, third, fourth, fifth and sixth defendants did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read transcript: Oxford v Secretary of State for Communities
