R Millgate Development Ltd v Wokingham Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Rimer,Lord Justice Munby |
| Judgment Date | 06 July 2011 |
| Neutral Citation | [2011] EWCA Civ 1062 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2011 |
| Docket Number | Case No: C1/2011/0225 |
[2011] EWCA Civ 1062
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE PEARL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Rimer
and
Lord Justice Munby
Case No: C1/2011/0225
Mr John Pugh-Smith ( instructed by Pitmans LLP) appeared on behalf of the Appellant.
Mr Guy Williams ( instructed by Wokingham Borough Council) appeared on behalf of the Respondent.
This is an appeal against a decision of HHJ David Pearl QC sitting as a deputy High Court judge on 14 January 2011 whereby he dismissed an application by Millgate Developments Limited ("the appellants") to quash a decision of Wokingham Borough Council ("the respondents"). The respondents had by letter dated 23 April 2008 refused to discharge an undertaking given by the appellants on 22 March 2007 under section 106(1) of the Town and Country Planning Act 1990 ("the 1990 Act"). On 10 October 2006 the appellants had applied to the respondents for planning permission to build 14 dwellings on land at Colemans Moor Lane, Woodley, Berkshire. The respondents' officers reported that the development was not appropriate to the character of the surrounding area. They also set out costs under the headings "highways", "leisure", "primary education", "secondary education" and "libraries" that the proposed development would attract, in line with the local plan, by way of contributions.
On 22 December 2006 the respondents refused permission. one of the reasons for refusal provided:
"…the proposal fails to make satisfactory provision of adequate services, amenities and infrastructure needs and consequently would have an unacceptable adverse impact upon the amenities of the area. As such the proposal is contrary to policies DP4 and T4 of the Berkshire Structure Plan and Policies WOS4 WR7 WT1 WT3 and WET7 of the 'Wokingham District Local plan"
Under the heading "Information" in the same document the respondents stated that the refusal "could be overcome through the submission of an acceptable Unilateral Undertaking". The appellants appealed against the refusal of permission and the appeal was considered on the basis of written submissions by an Inspector appointed by the Secretary of State for Communities and Local Government ("the Secretary of State").
On 22 March 2007 the appellants submitted what they described as, and was, a section 106 unilateral undertaking in support of the appeal. Section 106 of the 1990 Act provides, insofar as is material.
"1 Any person interested in land in the area of the local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and in sections 106A and 106B as a 'planning obligation') enforceable to the extent mentioned in the subsection (3)
….
(d) requiring a sum or sums to be paid to the authority…on a specified date or dates or periodically.
2. A planning obligation may a) be unconditional or subject to conditions;
…
c) if it requires the sum or sums to be paid, require the payment of a specified amount or an amount determined in accordance with the instrument by which the obligations entered into and, if it requires the payment of periodical sums, require them to be paid indefinitely or for a specified period.
3. Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with sub section 9(d) –
(a) against the person entering into the obligation; and
(b) against any person deriving title from that person.
…
9. A planning obligation may not be entered into except by instrument executed as a deed which –
a) states that the obligation is a planning obligation for the purposes of this section;
b) identifies the land to which the person entering into the obligation is interested;
c) identifies the person entering into the obligation and states what his interest in the land is; and
d) identifies the local planning authority by whom the obligation is enforceable…
…
11. A planning obligation shall be a local land charge for the purposes of the Local Land Charges Act 1975 the authority by whom the obligation is enforceable shall be treated as the originating authority as respects such a charge."
Section 106A provides, insofar as is material:
"(1) A planning obligation may not be modified or discharged except—
(a) by agreement between the appropriate authority (see subsection (11))] and the person or persons against whom the obligation is enforceable; or
(b) in accordance with this section and section 106B.
(2) An agreement falling within subsection (1)(a) shall not be entered into except by an instrument executed as a deed.
(3) A person against whom a planning obligation is enforceable may, at any time after the expiry of the relevant period, apply to the appropriate authority for the obligation—
(a) to have effect subject to such modifications as may be specified in the application; or
(b) to be discharged.
(4) In subsection (3) "the relevant period" means—
(a) such period as may be prescribed; or
(b) if no period is prescribed, the period of five years beginning with the date on which the obligation is entered into.
Where an application is made to an authority under subsection (3), the authority may determine—
(a) that the planning obligation shall continue to have effect without modification;
(b) if the obligation no longer serves a useful purpose, that it shall be discharged; or
(c) if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications."
The provisions of section 106A, as now enacted, were inserted into the 1990 Act by the Planning and Compensation Act 1991. The present appeal turns on the section 106A(1) procedure but I have cited 106A(3) because it may be relevant to the Act's construction that a different procedure is provided once the relevant period defined under the section has expired. Section 106B provides for an appeal to the Secretary of State against a decision of the local planning authority under Section 106A.
Clause 2.3 of the undertaking provided:
"The obligations contained in and created by this Undertaking shall not take effect unless and until the Planning Permission shall have been granted and Commencement of Development shall have taken place."
The leisure and library contributions stated in the undertaking were to be paid "provided that the council shall apply them towards leisure and library facilities within the Borough." Schools contributions were to be paid provided the respondents shall apply them towards the provision of school facilities "…where reasonably required by the Council in the light of the likely or actual impact upon such facilities in the Borough arising from the Development." The highways contribution was to be made provided it would be applied towards road safety measures and sustainable transport schemes reasonably required by reason of the impact of the development.
The contributions were by their terms to be paid "on or before the Commencement of the Development". They were not so paid and the development has been completed. Presumably no attempt to enforce was made at that stage because the provisos, to which I have referred in the undertakings, had not been met. Whatever the reason, the sum mentioned was not and has not subsequently been paid. The payments to be made under each of the specified headings were itemised. The total was in the region of £170,000. No evidence of how the sums were calculated, or as to what were they would be applied, was submitted for the consideration of the Inspector who heard the appeal.
A second undertaking was provided in April 2007 excluding the highways contribution but is not material for present purposes.
In an appeal decision dated 9 May 2007 the Inspector stated, when summarising his decision:
"The appeal is allowed and planning permission granted subject to conditions set out in the formal decision. None of the conditions relate to the section 106 undertaking."
At paragraph 13 the Inspector stated:
"The Council's request for contributions towards highways, leisure education and libraries are addressed by the Appellant through the submission of unilateral undertakings. However the Council produced nothing to show that those conditions are necessary in order to satisfy the test in Structure Plan Policy DP4, Local Plan Policy WOS4 or Circular 5/05, Planning Obligations. I therefore conclude that contributions to the provision of infrastructure are unnecessary and afford the unilateral undertakings little weight."
Structure Plan Policy DP4, mentioned by the Inspector at paragraph 3 of his determination, provides:
"Contributions may be sought from developers to provide additional infrastructure or services where they are needed to enable the development to take place and are directly and reasonably related in scale to the proposed development."
That policy reflects annex B to circular 05/2005, to which reference has been made in the course of the hearing:
"B5 The Secretary of State's policy requires, amongst other factors, that planning obligations are only sought where they meet all of the following tests. The rest of the guidance in this Circular should be read in the context of these tests, which must be met by all local planning authorities in seeking planning obligations.
A planning...
To continue reading
Request your trial
-
London Borough of Newham v Ali
...planning obligations entered into under section 106 of the 1990 Act are contractual obligations: see, for example, R (Millgate Development Limited) v Wokingham Borough Council [2011] EWCA Civ 1062, [2012] 3 EGLR 87 at para 22(e) and Stroude v Beazer Homes Ltd [2005] EWHC 2686 (Ch), [2006] ......
-
Aspire Luxury Homes (Eversley) Ltd v Hart District Council
...section 106 of the 1990 Act are contractual obligations: see, for example, R (Millgate Development Ltd) v Wokingham Borough Council [2012] 3 EGLR 87, para 22(e) and Stroude v Beazer Homes Ltd [2006] 2 P & CR 75. The mechanism for enforcement is provided by section 106(5): “a restriction or ......
- Newham LBC v Ali
-
Unilateral Undertakings - Avoid Unnecessary Payments
...of achieving a better negotiated resolution with the local authority. Source: Millgate Developments Ltd v Wokingham Borough Council [2011] EWCA Civ 1062. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your s......