It took His Honour Judge Sycamore just nine paragraphs to find that a clause preventing landowners from applying for parking permits was not within s.106 of the Town and Country Planning Act 1990. And just one further sentence to quash the planning permission to which the s.106 agreement related.
The case is R (oao Khodari) v. The Royal London Borough Council of Kensington and Chelsea, reported at [2015] EWHC 4084. decided on 18th November 2015. It was less than three years earlier that the same point came up, with the same result, in Westminster City Council v. Secretary of State. I posted about it here.
Why does this happen? Well, s.106 says that to be a planning obligation a promise must be within the categories in s.106(1), which are:
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically.
How is a promise not to apply for a car-parking permit within any of those? It isn’t. But s.106 does not need to be this restrictive. Before 1991, it was wider. As I wrote in my post on Westminster: “It is over 10 years since I raised points like these in “Planning obligations, ideas for reform” and the Law Society’s Planning and Environmental Law committee has raised them several times, recently urging the Government to include reform in the latest planning bill. But DCLG and its predecessors resolutely refuse to address the problem. Their current view is that planning authorities and applicants should get proper advice, and if they make mistakes that is their own look-out.” Nothing has changed. Except that it is now 13 years since I wrote that article in the Journal of Planning Law.
The costs claim against Kensington and Chelsea in the latest case was £28,000. And of course the planning permission is also lost. Will DCLG amend s.106 to make the drafting of s.106 agreements less of a hazard?
“use of the land in any specified way”, does that include occupation by specific groups of people such as someone from a particular geographic area? The use remains class C3 dwellinghouse so how can the restriction relate to who is allowed to occupy it? How do you enforce them anyway?