In R (on the application of Welcome Break Group Ltd) v Stroud District Council [2012] EWHC 140 (Admin) – see PP 2012/62 – the claimant sought to quash the decision of the local planning authority (“LPA”) to grant planning permission for a motorway service area (“MSA”). One ground of challenge was that the LPA had taken into account planning obligations that failed to comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010. (This provides that a planning obligation may only constitute a reason for granting planning permission for a development if the obligation is: (a) necessary to make the development acceptable in planning terms, (b) directly related to the development, and (c) fairly and reasonably related in scale and kind to the development.) As a consequence, these were immaterial to the merits of the development proposal.
The planning obligations obliged the MSA owner to use reasonable endeavours to stock locally sourced retail goods and produce in the shop and café, and to submit a local employment and training policy to the LPA.
In R (on the application of Welcome Break Group Ltd) v Stroud District Council [2012] EWHC 140 (Admin) – see PP 2012/62 – the claimant sought to quash the decision of the local planning authority (“LPA”) to grant planning permission for a motorway service area (“MSA”). One ground of challenge was that the LPA had taken into account planning obligations that failed to comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010. (This provides that a planning obligation may only constitute a reason for granting planning permission for a development if the obligation is: (a) necessary to make the development acceptable in planning terms, (b) directly related to the development, and (c) fairly and reasonably related in scale and kind to the development.) As a consequence, these were immaterial to the merits of the development proposal.
The planning obligations obliged the MSA owner to use reasonable endeavours to stock locally sourced retail goods and produce in the shop and café, and to submit a local employment and training policy to the LPA.
The court declined to uphold this ground of challenge. The judge pointed out that whether a planning obligation satisfies the tests in Regulation 122(2) was not a matter of law for the court to decide. The wording of Regulation 122(2) was derived from Circular No, 05/05: Planning Obligations. This in turn was the successor to earlier circulars that advised that the planning obligation in question should be “necessary to the grant of permission”. Accordingly, the ratio in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 PLR 72 remained good law in the context of Regulation 122.
An offered planning obligation that has nothing to do with the proposed development, apart from the fact that it is offered by the developer, is plainly not a material consideration and can only be regarded as an attempt to buy planning permission. However, if it has some connection with the development that is more than de minimis then regard must be had to it. The extent, if any, to which it affects the decision is a matter entirely within the discretion of the decision-maker.
As Lord Hoffmann stated in Tesco Stores, whether something is a material consideration is a question of law. If it is, then the weight to be given to it (if any) is a question of planning judgment, subject only to the Wednesbury test of reasonableness.
John Martin
