R Mansfield District Council v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 13 July 2018 |
| Neutral Citation | [2018] EWHC 1794 (Admin) |
| Docket Number | Case No: CO/330/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2018 |
[2018] EWHC 1794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
Cardiff, CF10 1ET
Mr Justice Garnham
Case No: CO/330/2018
and
Mr Mitchell (instructed by Mansfield District Council Principal Solicitor) for the Claimant
Mr Stedman Jones (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 7th June 2018
Approved Judgment
Introduction
Mansfield District Council (“the District Council” or “the Council”) is the local planning authority for Forest Town, Mansfield. On 14 December 2017, a Planning Inspector, appointed by the Secretary of State for Housing, Communities and Local Government, allowed an appeal, brought by Mr John Clark, against the District Council, for failing to determine that a planning obligation should be discharged. That planning obligation relates to development on land at Clipstone Road East and Crown Farm Way, Forest Town. The District Council now seeks judicial review of the Inspector's decision.
Mansfield District Council were represented before me by Mr Jonathan Mitchell; the Secretary of State by Mr Daniel Stedman Jones. The Interested Party, Mr Clark, was not represented at the hearing of this judicial review but detailed summary grounds, resisting the application, was produced on his behalf by Paul Brown QC. I am grateful to all Counsel for their assistance.
The Facts
On 2 September 1998, the District Council granted permission for a mixed employment and residential development on the site at Clipstone Road East. On 23 December 1998, the Council agreed to carry out highway works to facilitate the development. In an agreement, made pursuant to Section 106 of the Town and Country Planning Act 1990 (the “TCPA”) and Section 278 of the Highways Act 1980, Mr Clark agreed to pay 75% of the cost of those works. All works were carried out by the District Council and the sum said to be owed by Mr Clark was £459,346.85.
The development for which permission was granted in September 1998 has not taken place. However, on 9 December 2008, the Council granted a further planning permission and entered into a Section 106 agreement with Mr Clark to pay the same sum.
On 1 April 2010, Mr Clark made applications for planning permission for 215 dwellings on the site. That application was refused by the Council. However, permission was granted by the Secretary of State on 10 May 2011. In the meantime, Mr Clark had entered into a further Section 106 agreement associated with that application by which he undertook to pay the £459,346.85. Of that sum £160,000 has since been paid, leaving an outstanding balance of £299,346.85. There has, to date, been no development on the site.
It is common ground between the parties that the effect of each successive s106 agreement was to extinguish the pre-existing s106 liability.
On 27 July 2016, Mr Clark applied to the Council for modification of the planning obligation, so as to release him from the obligation to pay the outstanding balance. The Council having not determined that application, Mr Clark, appealed to the Secretary of State. The Secretary of State appointed Zoe Raygen DIP URP MRTPI as an Inspector to conduct the appeal under the written representations procedure
There was the usual exchange of written representaitons prior to the appeal. On 4 September 2017 Ms Raygen conducted a site visit. On 16 November 2017, some four weeks before her decision, the Council wrote an email to the Inspector which included the following:
“If you are unable to access transcripts directly, 3 additional cases have also been provided that may assist you as detailed below. The Council is not seeking to introduce new evidence at this stage but assist you in providing access to case transcripts which you are likely to identify as warranting consideration.
A copy of the case transcript referred to in the Planning Encyclopaedia at para P106A.06 (set out below) has been included (as it was envisaged that with no access to transcripts you may need to consider this as part of your deliberations),
An application to discharge an obligation will only be successful where the obligation no longer serves a useful purpose. This is not a high test. In Batchelor Enterprises (above) it was common ground between the parties, and Sullivan J. appears to have accepted, that a useful purpose in this context meant a useful planning purpose. In R (on the application of Renaissance Habitat Ltd) v West Berkshire DC [2011] J.P.L. 1209 Ouseley J. cast some doubt on this and expressed a reluctance to narrow the range of public interest purposes that an obligation may serve to purely planning purpose, and was reluctant to enable debate as to whether a purpose served was indeed a planning purpose. However, in practice it seems unlikely that this debate will arise given the obligations within an obligation will ordinarily relate at least to a planning purpose.
The Renaissance Habitat case was the key case cited in R (The Garden & Leisure Group Ltd) v N Somerset Council [2003] EWHC 1605 (Admin) where is was accepted (para 28) that the correct approach to considering an application under section 106A of the 1990 Act was to ask four essential questions (highlighted in the transcript). A copy of this transcript has also been provided and if it assists the Council's response to those questions is outlined below for information (this simply summarises the Council's case).
i) The current obligation is to pay the balance of the sum of £459,346.85, which fell due on 3 rd August 2016.
ii) The purpose of the obligation is to reimburse the Council for part of the expenditure it incurred for the benefit of the applicant in the construction of the new road. It gives effect to the “historic financial arrangement” between the Council and the applicant.
iii) That is a useful purpose. Local Authorities are short of money.
iv) The proposed modification would destroy that purpose. It would leave the Council without the money.”
The Appeal Decision
The decision of Ms Raygen is contained in a document, dated 14 December 2017. That Decision Letter confirms that the appeal was made, under Section 106B of the TCPA, against the failure to determine that the planning obligation should be discharged. It confirms that the planning obligation made between the Council and Mr Clarke (and his wife) was dated 3 February 2011. Ms Raygen allowed the appeal. She concluded that the planning obligation in relation to the contribution to the highways costs no longer served a useful purpose and should be discharged.
The whole of the appeal decision warrants careful reading. However, for the present purposes, the following paragraphs are especially material:
“9. However, part 1 of the Second Schedule of the S106 agreement requires the payment of a highway contribution of £459,346.85 within a specified timescale only partly related to the provision of the houses granted permission on the site. The sum of £100,000 was due to be paid on the date falling in one year after the date of the agreement. The appellant confirms that this amount has been paid to the Council, together with a further £60,000 at the time of the completion of a health centre on part of the site. The balance of £299,346.85 is due to be paid on the earliest of the three alternative dates. These are firstly, 14 days after the completion of a sale of the whole or of two or more acres of the site, secondly, the date of completion of 50% by number of the dwellings authorised to be constructed by the planning permission and thirdly, the date of expiry of the period of five years and six months from the date of the S106 agreement.
10. As development has not started on site, and the land has not been sold, the balance of the highway contribution fell due for payment on 3 August 2016.
11. The main issue is therefore whether the planning obligation regarding the contribution to the highway costs still serves a useful purpose.
Reasons
The Council refer me to a judgment ( Tesco Stores Ltd v SSE and others) which it considers demonstrates that once an obligation becomes binding it cannot be challenged on the grounds that it lacks sufficient relationship with the proposed development. However the quoted passage relates to the granting of planning permission, and once permission has been granted whether this decision may be challenged on the basis that the s106 obligation is not sufficiently connected with the proposed development. This is somewhat different to the case before me to discharge a planning obligation…
17. In this instance though, the Secretary of State did consider the obligation at appeal and found that the obligation in respect of the highway contribution was not necessary. I concur with this view. The payment related to a historic financial agreement between the parties at the time the road was constructed. It is therefore not necessary for the road to be constructed to make the residential development acceptable…
19. At the time, the appeal site could not have been developed had the road not been constructed. However, the road has now been in place for a significant number of years. Therefore, a payment required towards the highway costs of constructing the road, in any subsequent S106 obligation, would not in my opinion be directly related to the development proposed at the time. This, together with the road not being necessary to make the residential development acceptable means that the obligation does not continue to serve a useful purpose in this respect.”
The Statutory Regime
Section 106 of the TCPA 1990 provides as material:
“(1) Any person interested in...
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