Town and country planning – Planning permission – Section 106 agreement – Non-designated heritage assets – Parking permit free development – Respondent local authority granting planning permission subject to section 106 agreement requiring additional flats to be parking permit free – Whether respondents failing to identify building as non-designated heritage asset and take account of destruction of important interior features – Whether purported imposition of obligation not to apply for resident’s parking permits being outside respondents’ statutory powers – Appeal dismissed – Cross-appeal allowed
The appellant was the leaseholder of a flat at 31 Egerton Gardens, Chelsea (the building) which was converted into three flats and two maisonettes. In 2015, the respondent local authority granted planning permission for the conversion of the building from five flats to eight which involved internal works only. There was considerable pressure on parking in the borough and the respondents required the additional three units to be “permit-free”, with the developer entering into an obligation that no one who occupied the additional units would apply for a resident’s parking permit. It also required the developer to agree to pay a one-off monitoring fee to enable the respondents to police the “no permit” obligations. The requirements were purported to be made under section 111 of the Local Government Act 1972, section 106 of the Town and Country Planning Act 1990, section 16 of the Greater London Council (General Powers) Act 1974 and section 2 of the Local Government Act 2000. A second alternative application for permission to reconfigure the building from five flats in their existing form to five flats of different sizes was granted in 2016. No increase in the number of dwellings meant that no parking obligations were involved.
The appellant challenged the grant of the planning permissions on the grounds that: (i) the respondents had failed to take account of the fact that the building should have been identified as a non-designated heritage asset, and that the development would destroy important interior features of the building; and (ii) as regards the first planning permission, the purported imposition of the obligation not to apply for resident’s parking permits was outside the respondents’ statutory powers.
The first challenge, relating to both planning permissions, failed in the planning court; the second, relating only to the first permission, succeeded and the court quashed the first planning permission. The respondents appealed against that order. The appellant appealed against the judge’s refusal to quash the second permission.
Held: The appeal was dismissed. The cross-appeal was allowed.
(1) Although the respondents did not explicitly consider whether the building should be formally identified as a non-designated heritage asset, in substance they considered the merits of its interior. Moreover, whether an asset had the requisite degree of significance to satisfy the definition of “heritage asset” was a value judgment. Whether any particular asset had sufficient significance to merit consideration in planning decisions was a question of planning judgment. In the case of a non-designated heritage asset, that was the judgment of the local planning authority. The overall judgment of the respondents’ planning officer was that the proposals involved no alterations to the external appearance of the building and so would preserve the character of the conservation area. That was a planning judgment the respondents were entitled to make.
The loss of internal features was capable of being a material consideration even though those features could be removed without the need for planning permission where that loss was an integral part of the development that did require planning permission. However, the officer’s report on the first application explained why either the loss was not significant or that there was a countervailing benefit to the respondents in increasing housing stock. That was a question of planning judgment Since there had been no need for planning permission as regards the second application, the loss of internal features could not have been given any significant weight.
(2) The powers given by section 106 were to restrict the use of the land or require the land to be used in a specified way. The difficulty with fitting the parking permit requirements into those powers was that the use which the respondents sought to prevent was not use of any particular flat in the building, but use of the highway for parking. Moreover, an application for a parking permit, if it could not be made online, could be made by post in a letter posted from anywhere or by personal application. It did not have to be made within the building itself. There was no use of the building. The judge was right to reject reliance on section 106 to validate the obligations dealing with parking permits. Those obligations were not capable of being planning obligations but were personal undertakings which did not run with the land. It followed that they were not required to comply with regulation 122 of the Community Infrastructure Regulations 2010: Westminster City Council v Secretary of State for Communities and Local Government [2013] EWHC 690 (Admin) applied.
(3) However, the obligations about parking permits fell within section 16 of the Greater London Council (General Powers) Act 1974 and were legally valid. The requirement of section 16 was that the agreement had to be made in connection with the land. It was not a requirement of section 16 that the agreement regulated the use of the land itself. The phrase “in connection with” had a wide meaning. There was a connection between use of the three additional units for residential purposes and the potential for the grant of additional parking permits, not least because a qualification for a parking permit was residence within the borough. Accordingly, there was a sufficient connection between the requirements imposed by the deed and the proposed development.
(4) Since the obligation to pay a monitoring fee was a one-off payment to be made on the execution of the deed, there was no question of its being enforced against successors in title of the original parties to the deed. Its validity depended simply on the respondents’ power to contract for its payment. The original parties to the deed were bound by it as a matter of contract. The respondents’ power to enter into such a contract was validated either by section 111 of the 1972 Act or by section 1(1) of the Localism Act 2011. The respondents’ cross-appeal would be allowed.
Meyric Lewis (instructed by Blake Morgan LLP) appeared for the appellant; Jonathan Wills (instructed by Tri Borough Shares Legal Services) appeared for the respondents.
Eileen O’Grady, barrister
