Developers applying for planning permission for different parts of site – Council requiring section 106 agreements – Applicant developer requesting to see draft section 106 agreement relating to other developer – Council issuing notice of agreement without responding to request – Application for judicial review – Whether council adopting fair procedure – Application refused – Appeal allowed
In 1996 the applicant, Lichfield Securities Ltd, obtained planning permission to develop a large area of Fradley Airfield, Lichfield, Staffordshire. It also entered into an agreement under section 106 of the Town and Country Planning Act 1990, by virtue of which it was to meet the cost of the provision of roads adjoining and feeding parts of its site.
The applicant was aware that the second respondent, W, had also applied for planning permission for the erection of a food-processing unit and ancillary works on an area of land at Easthill Farm, Wood End Lane, which was part of Fradley Airfield, and that a section 106 agreement was being considered in relation to that application. In March 1999, after attending a number of meetings with the first respondent council, the applicant requested a draft copy of W’s section 106 agreement in order that it might consider making representations about its terms. The applicant received no response to this request.
In April 1999 the council granted planning permission for the food-processing unit, and W entered into a section 106 agreement undertaking, inter alia, to pay a sum of money to the council, which the council covenanted to apply to defined highway improvements. W also covenanted to adopt and implement a “green transport plan”, the aim of which was to reduce the traffic generated by the development by imposing restrictions in respect of the transport of workers and products in and around the development at peak traffic hours.
When the applicant discovered that the council had issued a section 106 notice in respect of W’s development, it sought judicial review, contending that the council had acted unfairly in not making the agreement available to it, so that it could make representations as to the terms. It was submitted that the applicant had a direct financial interest in those terms and in the provisions agreed to in the green transport plan, since they could adversely affect the ability of the applicant to realise the full development potential of its site.
The judge found that the council had suggested, after initial consultation, that the applicant would be permitted to make further representations regarding the section 106 agreement to be entered into with W, thereby creating a legitimate expectation that anything further that the applicant wished to submit would be considered. However, the judge refused relief on the ground that although the council had failed to fulfil that expectation, the applicant’s challenge to the council’s decision had not been made “promptly” within the provisions of Ord 53 r 4(1) of the Rules of the Supreme Court. The applicant appealed.
Held: The appeal was allowed.
1. It was a fundamental principle of section 106 of the Act that it must be used only for legitimate planning purposes. The council’s failure to bring the applicant and W into a single process of consultation, however brief, about the best formula for apportioning the road infrastructure costs had been unjustified and potentially unfair to the applicant. However, potential unfairness was not enough (see R v Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344). It was the combination of process and impact that had to be shown to have been unfair before a public law challenge could succeed. In the instant case, the council’s conduct had not simply been unsatisfactory but had also been unfair, since the applicant had not been afforded a sufficient opportunity to attempt to reverse the effect of the section 106 agreement with W.
2. The judge ought not to have embarked upon the issue of undue delay. A respondent should only be permitted to recanvass, by way of undue delay, an issue of promptness that was decided in the applicant’s favour at the time when leave for judicial review was sought if: (i) the judge hearing the initial application had expressly permitted it; (ii) new and relevant material was introduced on the substantive hearing; (iii) exceptionally, the issues as they had developed at the full hearing put a different aspect on the question of promptness; or (iv) the first judge had plainly overlooked some relevant matter or otherwise reached a decision per incuriam. That was no more than practical case management under the Civil Procedure Rules. Accordingly, the council’s decision was quashed and the matter remitted for reconsideration.
John Taylor QC and Gregory Jones (instructed by Wilbraham & Co, of Leeds) appeared for the applicant; David Mole QC and Ian Dove (instructed by Moseley Chapman & Skemp, of Lichfield) appeared for the first respondents; Mark Lowe QC (instructed by Hadens, of Lichfield) appeared for the second respondent, Christopher Williams.
Thomas Elliott, barrister
