In Leeds City Council v Secretary of State for Communities and Local Government [2010] EWHC 1412 (Admin); [2010] PLSCS 165, proceedings brought under section 288 of the Town and Country Planning Act 1990 to challenge the decision of an inspector to grant outline planning permission for a residential development on a greenfield site, the principal issue was whether the inspector had failed to give regard to relevant planning policies. However, further grounds of challenge on which the local planning authority (LPA) relied were based on the inspector’s approach to securing the provision of affordable housing.
The inspector imposed the following condition:
“The development shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted to and approved by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex B of PPS 3 or any future guidance replacing it.”
The LPA contended that (i) the condition was inappropriate because the necessary financial contribution from the developer could be secured only by a section 106 agreement; and (ii) a condition should not be used to require a developer to enter into such an agreement. (The former contention was based on recent guidance from the Planning Inspectorate.)
The judge noted that Circular 11/95: The Use of Conditions in Planning Permissions recognises the availability of a condition to secure the provision of affordable housing. However, it advises generally that where there is a choice between the imposition of a condition or the entry into a section 106 agreement, the former should be chosen. It also advises that permission cannot be granted subject to a condition requiring the developer to enter into a section 106 agreement.
He concluded that the inspector had not erred in law in imposing the condition. He had acted consistently with the advice contained in Circular 11/95. It was not inevitable that the scheme the condition required would involve the developer in making a financial contribution. Its real effect was to reduce the developer’s profits. (This was not an instance where it had been argued that affordable housing could not be provided as part of the development, so that a financial contribution had to be paid to provide such housing elsewhere.) Equally, the condition did not require the developer to enter into a section 106 agreement.
John Martin is a freelance writer
