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Where are the goalposts for what is “necessary to make the development acceptable in planning terms”?

Rugby PostsThere is an interesting new decision on what can be taken int account in a planning agreement. Decided on 16th December 2013 but just reported today, R (OAO Hampton Parish Council) v. Herefordshire Council, Hereford RFC and Bloor Homes [2013] EWHC 3947 (Admin) concerns a permission for a new rugby ground and 250 houses, to replace Hereford RFC’s former ground which was situated in the “functional floodplain” and frequently flooded. It was accompanied by a s.106 agreement which prevented the use of the new ground for rugby unless the old ground was transferred to the council for £1.

Sport England and the local authority parks department had both stressed to the planning committee the need to retain the existing ground for continued public amenity as sports fields.  The parish council challenged the grant of permission on the grounds (inter alia) that the transfer of the Rugby Club’s existing ground to the Council, was not a material consideration because the existing ground had no relationship or connection with the proposed development, and secondly it did not meet the policy and legal test of necessity.  That test is that a planning obligation may only constitute a reason for granting planning permission if the obligation is necessary to make the development acceptable in planning terms – see Reg 122 of the CIL regulations.

The parish council submitted in the High Court that there was no direct connection and that the fact that the land was to be transferred at nominal consideration and without any covenant restricting its use (so that it might be used for valuable development) showed that it was not material, not necessary and amounted to buying the planning permission.  Mr Justice Hickinbottom disagreed.  The land flooded and could not be used for valuable development; the objections by Sport England and the council’s own parks department showed that it was in the public interest, directly related and a material consideration which could properly be taken into account.  Lastly the necessity test was not, he held, a “but for” test.  It would not be right to ask if the permission would have been granted but for the planning obligation.  Rather, he said, “What is acceptable in planning terms is dependent upon a complex web of policies and other material considerations, and a series of planning judgments.  As I have said, there was evidence of the need to retain the existing ground use as playing fields, by way of a public amenity.”  But does he really reject the “but for” test?  In his next sentence he said: “However, in the circumstances of this case, if the section 106 obligation to transfer the existing grounds to the Council had not been extracted, then it would have been open to the Council through its officers to have negotiated some other entirely different benefit, or changed some other aspect of the proposal to make the entire whole acceptable in planning terms. It is impossible to say precisely what the result of such negotiations might have been. It can be said that, in this finely balanced matter, with the Section 106 obligations as agreed, the proposal was acceptable in planning terms; and, without them, as it stood it would not have been.”

Reg 122 is causing quite a lot of litigation – we already have Derwent Holding v. Trafford BC [2011] EWCA (Civ) 832 and Persimmon v. Secretary of State [2011] EWCA 3931 (Admin).  The aim of the policy and now the regulation is to limit what can be demanded by planning authorities.  IS not the approach of judges broadening the scope of what can be demanded?

(I am also interested in the substance of this obligation.  What would happen in the unlikely event that the council refused to accept the transfer, e.g. if covenants or indemnities were needed from the council?  The council would appear to be in a ransom position.)

1 comment to Where are the goalposts for what is “necessary to make the development acceptable in planning terms”?

  • I find it bizarre that S106 has evolved from what Parliament intended to the point where it is used to restrict occupancy to people who live in a specified locality and that a policy which is meant to maintain “vibrancy” makes the obligations “necessary to make the development acceptable in planning terms”. It also seems odd that an occupancy restriction can possibly be an obligation under S106. These restrictions do not comply with EU law and the fundamental freedoms so how do we challenge these obligations that PINS seem to rubber stamp without reference to the law. We need a legal ombudsman to deal with cases where PINS says it is not the appropriate route for a legal challenge.

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