PP 2013/116

The pooling of the costs of strategic off-site works is not conceptually incompatible with regulation 122 of the Community Infrastructure Levy Regulations 2010, but compliance will depend upon the facts in each case   Regulation 122 of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may only constitute a reason for granting planning permission for the development if the obligation is (a) necessary to make the development acceptable in planning terms (b) directly related to the development and (c) fairly related in scale and kind to the development. The obvious underlying policy is to prevent developers from “buying” planning permission with the promise of wide ranging largesse. In Telford and Wrekin Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin); [2013] PLSCS 145, the local planning authority (“LPA”) sought to quash the decision of an inspector on appeal to grant planning permission for a new food store. One of the issues before the court was whether a planning obligation providing for the developer to meet a proportion of the pooled costs of strategic off-site highway works was capable of complying with regulation 122. In this particular case, the LPA had before it a number of other planning applications for development in the same area, and it had sought to apportion the cumulative costs of the highway works between the proposals. The inspector concluded that the planning obligation was not compliant with regulation 122. She was concerned that it was unknown whether the other proposals would be approved, and if so within what timescale. Accordingly, the developer’s contribution towards the pooled costs might or might not be proportionate. The court began by stating that pooled costs could, in appropriate cases, satisfy the requirements of regulation 122 but that it did not follow that such costs were, in any given case, bound to do so. It approved the inspector’s approach, holding that she was entitled to reach the decision she did on this point. The calculation of the contribution was based on what was almost certainly a false premise, namely that all of the other developments would go ahead. But it also held that she was entitled, having discounted the planning obligation, to conclude that the remaining merits of the appeal proposals were sufficient to justify granting planning permission. The failure of the planning obligation to comply with regulation 122 was not, therefore, determinative of the appeal.   John Martin