Town and country planning – Planning permission – Respondent council granting planning permission for new retail store on brownfield site — Planning agreement under section 106 of Town and Country Planning Act 1990 providing for measures to mitigate adverse impacts on town centre – Community Infrastructure Levy Regulations 2010 — Whether respondents entitled to conclude that measures provided under planning agreement fairly and reasonably related in scale and kind to development as required by regulation 122(2) – Whether respondents obliged to quantify mitigating effect of those measures – Appeal dismissed
In March 2014, the respondent council granted planning permission for a large out-of-town retail store, along with a petrol station, car parking, finishing shop and offices, on a brownfield near Lydney, Cambridgeshire. Prior to the grant of permission, a planning agreement was executed under section 106 of the Town and Country planning Act 1990, providing for a shuttle bus service between the new retail store and Lydney town centre and the payment of £380,000 to provide town centre management advice, town centre improvements, a market square, additional CCTV camera coverage, and shop front improvement grants in the town centre. The respondents’ planning committee took the view, contrary to the advice of their planning officers, that the development of the brownfield site would safeguard existing and create new jobs and that the impact on the town centre would be mitigated by the section 106 obligations.
The appellant, which operated a supermarket near the development site, applied for judicial review of the decision to grant planning permission. One of its main contentions was that the respondents had acted improperly in giving weight to the section 106 agreement when deciding to grant planning permission since that agreement was not “fairly and reasonably related in scale and kind to the development”, contrary to the requirements of regulation 122(2) of the Community Infrastructure Levy Regulations 2010.
The appellant submitted that the respondents’ planning committee had not quantified the extent to which the adverse impact on the town centre would be mitigated by the section 106 obligation, and indeed could not have done so on the material before them, with the result that they had not properly considered the relationship in scale or kind between the obligations imposed by the section 106 agreement and the development. The claim was dismissed in the court below: see [2014] EWHC 3348 (Admin); [2014] PLSCS 316. The appellant appealed.
Held: The appeal was dismissed.
The package of measures in the section 106 agreement was fairly and reasonably related in kind to the development because it sought to mitigate what was acknowledged to be a significant adverse impact of one of the major elements of that development. It was not a case of a local planning authority seeking funding through the imposition of a section 106 agreement for some extraneous planning benefit that was unrelated to any adverse impact of the development for which permission was sought. In terms of scale, measures that merely mitigated, but did not obviate, a significant adverse impact that would be caused by a proposed development were likely to be fairly and reasonably related in scale to that development. Each case would be fact sensitive. There might well be cases where the cost of such mitigation measures would be so excessive that the obligation would be out of scale with the proposed development, even though they would not obviate its adverse effects, but there was nothing to suggest that the overall cost of the particular mitigation measures provided by the section 106 agreement in the instant case, namely £380,000, was out of scale with the substantial employment/retail proposal for which permission was granted. It was the large scale of the retail element of the out-of-centre proposal which resulted in the significant adverse impact on the town centre.
This was a case where it would not be possible to express in numerical terms the relationship between the scale of the benefits to be provided under the section 106 agreement and the scale of the development which had been permitted. Regulation 122(2) did not always oblige decision-makers to carry out some form of “quantification” of the benefits and their relationship to the development, whether in words or figures. While a planning decision-maker had to approach the assessment of the requirements in regulation 122(2) with appropriate rigour, what was appropriate would vary depending on the circumstances of each case. There would be cases where some form of quantification would be necessary, because the decision-maker would have concluded that an adverse impact had to be reduced by a certain amount, or to a particular level or in a certain way, if it was to be acceptable in planning terms; but it did not follow that “quantification” would be necessary in every case.
In the instant case, while the respondents had not quantified the extent to which the adverse impact on the town centre would be mitigated by the section 106 obligations, they had been entitled to conclude, as a matter of planning judgment, that the employment benefits of the proposal so outweighed the significant adverse impact on the town centre that, even in the absence of any measures to mitigate that impact, permission should be granted. It followed that they could lawfully decide that, provided they were satisfied that the impact on the town centre would be mitigated to some degree, albeit unquantified, then the employment benefits of the proposal would outweigh the adverse impact on the town centre and justify a permission contrary to the National Planning Policy Framework and the development plan. It followed that quantification of the section 106 benefits was not necessary in light of the grounds on which the respondents decided to grant planning permission: R (on the application of Mid Counties Co-operative Ltd) v Forest of Dean District Council [2013] EWHC 1908; [2013] PLSCS 161 and [2014] EWHC 3059; [2014] PLSCS 259 distinguished.
Timothy Straker QC and Gwion Lewis (instructed by berwin Leighton Paisner LLP) appeared for the appellant; Paul Stinchcombe QC and Jon Darby (instructed by Eversheds LLP) appeared for the third interested party; the respondents and the first, second and fourth interested parties did not appear and were not represented. .
Sally Dobson, barrister
