Town and country planning – Planning permission – Conditions – Claimant obtaining planning permission subject to section 106 agreement requiring payment of transport contributions – Claimant submitting second planning application – Reserved matters approval perfecting second planning permission – Claimant seeking declaration as to requirement to pay further instalments of transport contribution – Whether claimant entitled to elect to continue and complete development under second planning permission – Whether claimant in fact electing to continue and complete under second permission – Application granted
The claimant property developer purchased the site of the former Ronkswood Hospital, Newtown Road, Worcester for housing development. The interested party local authority was the planning authority for the area and the defendant county council was the highway authority. In 2012, the claimant was granted planning permission for up to 200 dwellings and associated works on the site. The permission was subject to an agreement under section 106 of the Town and Country Planning Act 1990 in which the claimant agreed to pay the defendants a transport contribution in three instalments payable on meeting development targets. Soon after, the claimant sold its entire interest in the site to a third party on terms including that the claimant would observe and perform its obligation to make the payments to the defendant under the first section 106 agreement and to indemnify the third party against any breach or non-performance of that obligation. The claimant submitted a further planning application for residential development of the site. The inspector appointed by the secretary of state granted planning permission for the same development as the first planning permission, but without an obligation to provide a transport contribution.
An issue arose whether the obligation to pay an amount per dwelling within a proposed development as a transport contribution had survived the grant of planning permission on the second application, identical to the first, save for that particular section 106 obligation, and the steps said to have been taken to implement that second permission.
The questions for determination were: (i) whether, after the reserved matters approval had perfected the second planning permission, as a matter of law, the claimant had been able to elect to continue and complete the development under the second planning permission, rather than the first planning permission; (ii) if so, whether the claimant, on the evidence available, had in fact elected to continue and complete the development under the second planning permission; and (iii) whether the declaration should be granted.
Held: The application was granted.
(1) As a matter of law, after the reserved matters approval had perfected the second planning permission, the third party developer had been able to elect to continue and complete the development under the second planning permission, rather than the first planning permission. Where two planning permissions existed in respect of the same land, as a matter of principle, a developer might chose between them. Once the second planning permission had been fully granted by the grant of reserved matters approval, the third party had two extant planning permissions in respect of the site. The planning permissions had not been inconsistent and nothing had been done under the first planning permission that meant that the second planning permission could not be implemented or that the development could not be carried out under the second planning permission. Therefore, as a matter of law, the third party had been entitled to choose or elect under which authorisation it had wished to proceed: Pye v Secretary of State for the Environment [1998] 3 PLR 72 applied; R v Leicester City Council, ex parte Powergen UK Ltd [2000] 81 P&CR 5; [2000] PLSCS 116 considered; Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 distinguished.
(2) It was common ground that, as a matter of law, whether work was done in accordance with a particular planning permission was subject to an objective test, the intention of the parties being irrelevant. Looked at objectively and against the relevant background, in the section 106 undertaking the third party would reasonably have been understood to have meant that, once the section 106 undertaking had taken effect, it would not progress the development in terms of any material operation under the authorisation for the first planning permission. Material operations within the development had been carried out. As reliance on the first planning permission had been given up, those material operations could only have been carried out under the second planning permission. The trigger for the second and third instalments of the transport contribution obligation had never arrived before reliance on the second planning permission had been effective. That permission had had no such obligation.
(3) The court was unpersuaded that this was a case in which relief should be withheld. The court had power to grant a declaration in judicial review proceedings where it considered it just and convenient in all the circumstances of the case, even where a declaration was the only relief claimed. That was a wide discretion, but it had to be exercised judicially. It had been said that the court should only make such a declaration if three conditions were satisfied, namely, the question under consideration was a real question, the person seeking the declaration had a real interest and there had been proper argument.
The claimant clearly had a sufficient interest to bring the claim and a real interest in the issues raised. It remained liable for any transport contributions due under the first planning permission. It was part of the contractual scheme entered into between the claimant and the third party that the third party need not take part in the proceedings. The central issue raised was clearly a real question, with real potential consequences for all parties. There was no doubt that the issue had been the subject of not only proper, but vigorous, debate. There was no good reason to deprive the claimant, which had succeeded on the merits, from the relief it sought: Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 3 All ER 437 applied.
Anthony Crean QC (instructed by Eversheds LLP) appeared for the claimant; John Hobson QC (instructed by Legal and Democratic Services, Worcestershire County Council) appeared for the defendants; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
Read the transcript of R (on the application of Robert Hitchins Ltd) v Worcestershire County Council
