Development of site to provide retail store – Agreement to provide leisure centre – Town and Country Planning Act 1971, section 52 – Planning authority having change of policy – Supplemental agreement under Town and Country Planning Act 1990, section 106 – Applicants seeking leave to apply for judicial review – Whether section 52 agreement still valid – Leave refused
In 1984 Savacentre made planning applications for retail development in Collier’s Wood. The Secretary of State for the Environment granted planning permission subject to an agreement under section 52 of the Town and Country Planning Act 1971 between the respondent, Savacentre, and Ramheath Properties which was executed in 1986. Savacentre and Ramheath covenanted to build a leisure centre, including a swimming pool. There was a recognised deficiency in the provision of swimming pools in the area. By 1993 Savacentre indicated that it did not intend to meet its relevant obligations under the section 52 agreement and the respondents decided not to enforce the agreement. After negotiations, the respondents changed their policy regarding the provision of a leisure centre of the sort envisaged in the section 52 agreement, which was then varied by a supplemental agreement under section 106 of the Town and Country Planning Act 1990. The developers then applied for planning permission to provide other facilities, including, inter alia, a bingo hall and drive-through restaurant. Permission was granted on October 10 1996, the first resolution. The report to the committee contained no reference to the section 52 agreement or to the supplemental agreement of 1993, the premise being that the 1993 agreement was valid and binding on both the respondent and the developers. Access to the relevant report to vary the section 52 agreement was sought by the applicants, a group of local children, but refused. The applicants contended that they had been deprived of the opportunity of seeing the basis on which the developers had persuaded the respondents to change their mind and sought judicial review of the first resolution. In response the respondents passed a second resolution in March 1997 asserting that the agreement of 1993 was valid. The applicants then applied for leave to seek judicial revue of both decisions contending that the respondents had failed to take into account a material consideration, namely the section 52 agreement of 1986 under which the developer was under an obligation to provide the leisure centre. The respondents argued that the applicants’ real complaint concerned the policy change in 1993 and that that had never been challenged.
Held Application for leave to apply for judicial review dismissed.
1. There were substantial differences between the provisions of section 52 of the 1971 Act and section 106 of the 1990 Act and there was an arguable case that the differences between the two provisions were so substantial that no agreement could properly live under both regimes.
2. However, the respondents were entitled to and did change their policy in 1993 with regard to the provision of leisure facilities. That decision was not subject to challenge and had been acted upon by all parties to the decision since. Even if the respondents had been differently advised as to the legal status of the 1993 agreement, they could not properly have come to a different conclusion. An appeal was therefore bound to fail.
Richard Gordon QC and Martin Edwards (instructed by Leigh Day & Co) appeared for the applicants; John Hobson (instructed by the solicitor to Merton London Borough Council) appeared for the respondents.
