by Ian Gatenby
A recent planning appeal decision by the Secretary of State for the Environment puts a considerable damper on the hopes of education authorities around the country to obtain contributions towards school provision from residential developers.
The case in point related to land at Hastings which had been allocated for residential development for some years. It came to appeal not because the planning authority objected to the principle of development (although others did so), but because the authority contended that the land did not need to be released at that particular stage.
The county council, as education authority, appeared at the inquiry to seek the refusal of planning permission in the absence of a financial contribution towards the cost of a primary school. It pointed to a structure plan policy indicating that development would not be permitted until there had been a commitment by the developer, or some other body, to meet the cost of any infrastructure or other capital works which would not have been necessary but for the development. It also pointed to the explanatory memorandum to that policy which indicated that it could relate not only to sewerage, surface water and roads but also to schools or community facilities.
However, as is often the case, the explanatory memorandum related to an earlier wording of the policy, which had been modified by the Secretary of State. Therefore (a) although the policy was approved by the Secretary of State, the explanatory memorandum was not, and (b) strictly speaking the explanatory memorandum did not relate to the approved policy.
The council’s position
The essence of the council’s case was that the development would trigger the need to build a primary school which might otherwise be built later. The education authority was constrained financially, and had not planned to provide the school site so soon. If untimely planning permission were granted, the authority’s capital programme would be put in disarray, or else primary school children would have to travel elsewhere until a new school could be built.
The council argued that it was not a matter of refusing permission to development in order to obtain a contribution, but a matter of refusing development which was out of phase. Within the terms of the policy, the Secretary of State could not be satisfied that the capital needed to provide the school would be provided, and therefore permission should be refused.
In pre-inquiry negotiations, the county council had requested:
(a) a free transfer of the land required for the school (since it was owned by the applicants, but outside the application site);
(b) a contribution reflecting the entire cost of access to the school site (which in the particular case would be expensive because of bridge and highway works); and
(c) a contribution towards the capital costs of building the school. Initially, council members had instructed their officers to seek a 100% contribution, but in pre-inquiry discussions it was indicated that something less might be acceptable, although a very substantial contribution would still be needed.
The applicants had contended that there was no authority for these requests and therefore had declined them.
At the inquiry it was accepted that the pre-inquiry financial requirements of the county had been somewhat ambitious, and that the contribution should not be based on the capital costs but rather on the costs of bringing forward in time the capital expenditure. Also, bearing in mind that the proposed development would generate about 25% of the pupil population of the school, a reasonable contribution would be about 25% of the cost of advancing that capital expenditure.
The appellants’ position
The appellants contended that the council’s case was misconceived as a matter of principle. The education authority had a duty to secure sufficient school provision, but had no statutory right to exact any charge.
In relation to planning gain, government policy had always distinguished between physical infrastructure, eg roads and sewers on the one hand, and social infrastructure on the other hand.
If the Secretary of State were to agree with the county, it would encourage education authorities elsewhere to phase back school construction programmes in order to obtain financial contributions.
The county’s approach was inherently unfair since no contribution was being required in respect of other residential developments whose population would have children attending the school.
The decision
The senior inspector who heard the appeal concluded that, in the context of current planning policies, the county’s problems did not have sufficient bearing on the appeal to justify the refusal of planning permission. The Secretary of State agreed with this conclusion and emphasised that the question of financial contribution must be a matter of voluntary agreement between the parties.
Conclusions
In my view several points may be drawn from this decision:
(1) The existence of a planning policy intended to justify contributions to infrastructure cannot be used to justify a contribution which would otherwise be contrary to the guidance contained in circulars 22/83 and 1/85.
(2) The fact that a development triggers some item of infrastructure will not necessarily justify even a contribution towards that item.
(3) There must be considerable doubt of the extent to which, if at all, an applicant can lawfully be required to contribute towards educational requirements.
(4) The Secretary of State’s emphasis on financial contributions being voluntary is yet another confirmation that he disapproves of the planning procedures being used as an indirect means of obtaining such a contribution.
(5) It was accepted at the inquiry that the issues related to social infrastructure, as opposed to the physical infrastructure of the kind of which specific guidance is given in Circular 22/83. Neither the Secretary of State nor the inspector commented on the significance of this distinction. If it is valid, and I believe it to be so, the decision is directly relevant only to social infrastructure. On the other hand, some planning authorities take the view that the distinction is invalid and, if so, the lessons of this appeal would apply also to physical infrastructure.
Final thoughts
It is to be hoped that this decision will stem what at the moment is a somewhat unpleasant tide of certain authorities seeking, for the very best of motives, to obtain financial contributions which are not justified as a matter of policy and which in some cases are unlawful.
There appears to be a widespread lack of understanding at member level in local authorities of the basic legal point that a set of statutory powers given for one purpose must be used for that purpose only, and not to obtain other advantages. It is to be hoped that this appeal decision will help those worthy officers of local authorities who try very hard to keep their political masters on the straight and narrow path.