R (on the application of Millgate Developments Ltd) v Wokingham BC
| Jurisdiction | England & Wales |
| Judge | His Honour Judge David Pearl |
| Judgment Date | 14 January 2011 |
| Neutral Citation | [2011] EWHC 6 (Admin) |
| Docket Number | Case No: CO/5115/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 January 2011 |
[2011] EWHC 6 (Admin)
Before : His Honour Judge David Pearl
(SITTING AS A Deputy High Court Judge)
Case No: CO/5115/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr John Pugh-Smith and Mr Zack Simons (instructed by Pitmans Solicitor) for the Claimant
Mr Guy Williams (instructed by Wokingham Borough Council) for the Defendant
Hearing date: 6 th December 2010
His Honour Judge David Pearl :
Introduction
Millgate Developments Ltd seek judicial review of a decision taken by the Defendant Local Authority by letter dated 23 rd April 2008. This letter purported both to refuse the discharge and to seek the enforcement of the terms of a Unilateral Undertaking dated 22 nd March 2007 made under section 106(1) of the Town and Country Planning Act 1990.
Permission to seek judicial review was refused on the papers by His Honour Judge Pelling QC on 2 nd September 2008. Mr Justice Cranston granted permission after an oral hearing, subsequent to a renewed application, by Order dated 16 th January 2009. The Order states "Permission to proceed with the claim for Judicial Review be granted".
Although I heard argument relating to whether Mr Justice Cranston sought to limit the extent of the grounds upon which he granted permission, and indeed I have had the opportunity of reading extracts from the exchanges between Counsel and Mr Justice Cranston, it is my finding that I am not limited by the terms of the Order (quoted above) to hearing submissions only on certain grounds. In consequence, I heard submissions on all of the grounds submitted by the Claimant when seeking judicial review of the 23 rd April 2008 decision.
I have had to deal with a further preliminary point, namely whether certain Witness Statements from Consultants instructed by the Claimant and obtained subsequent to the Decision should be allowed in as evidence. I have decided to allow in this evidence, but limited to demonstrating, as the Claimant urges on me, that the 23 rd April 2008 decision is open to challenge on judicial review grounds. I do not allow in the evidence in order to reopen what may be perceived as factual decisions on the merits made by the Council on 23 rd April 2008.
Background
The Claimant, a residential developer, sought planning permission in 2006 (F/2006/8913) to develop land at Colemans Moor Lane, Woodley, near Reading in Berkshire. The proposed development is the erection of 14 dwellings.
The Officers' Committee Report concluded that the proposed form of development was not appropriate to the character of the surrounding area and accordingly the application was recommended for refusal.
The Officers' Committee Report stated that the proposed development would attract the following contributions in line with the Council's Supplementary Planning Advice Note (PAN) and Policy WOS4 of the Local Plan: Highways —£53,3000; Leisure —£62,231.78p; Primary Education – total of £9,393; Secondary Education —£42,283; Libraries —£3,276. The Report went on to recommend that in the absence of a section 106 agreement, there should be a "holding reason" for refusal in respect of the trees and financial contributions.
By a Notification Letter dated 22 nd December 2006, the Wokingham District Council refused permission for carrying out the development. One of the refusal reasons (no 2) states that:
"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."
The letter provides the following "Information", namely that refusal number 3 (which must, to make sense, be a typing error for number 2) could be overcome through the submission of an acceptable Unilateral Undertaking.
The Claimant appealed under section 78 of the Town and Country Planning Act 1990 against the refusal of permission. Interestingly, and of some importance, the Amplification of Grounds of Appeal deals only with the refusal of permission based on the poor layout of the site etc. It states that the second issue "will be resolved through the submission of four different undertakings".
By a Decision Letter dated 9 th May 2007, the appeal was allowed, in that planning permission was granted subject to conditions set out in the Formal Decision. Paragraph 13 is the only paragraph that deals with Infrastructure. It says:
"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 produce nothing to show that those contributions are necessary in order to satisfy the tests 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".
The Undertaking which is the subject of the dispute is the one dated 22 nd March 2007. It states in 2.2 that:
"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".
There are specific paragraphs relating to Highways, Primary School Contribution, Secondary School Contribution, Off-site Leisure Contribution, and Library Contribution. In the case of each contribution there is a requirement that the contribution be applied towards measures:
"within the Borough 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".
There is a further Undertaking dated 13 th April 2007, which is to the same effect as the March Undertaking, except that it omits reference to Highways. The 13 th April Undertaking states "it is our view that the Council have not provided justification for the highway contribution and as such it does not meet the tests under Circular 05/2005". It was common ground between the parties that it is the March Undertaking that should be the focus of this hearing.
Solicitors acting on behalf of the Claimant emailed the Council on 18 th October 2007 seeking confirmation that, in the light of paragraph 13 of the Decision Letter of the Inspector, the Undertakings would now be removed from the Register of Local Land Charges.
The reply, dated 31 st December 2007, makes clear that having taken Counsel's advice, it was the Council's position that the Inspector's decision did not affect the enforceability of the obligations. The email of this date states that the Unilateral Undertakings would not be removed from the Land Charges Register. By letter dated 14 th January 2008, the Council required the Claimant to meet the terms of the Undertaking (by which is meant the March Undertaking) within one month of the date of the letter.
After further email exchanges between the parties, the Claimant's Solicitor received a letter dated 23 rd April 2008 from the Legal Division of the Defendant Borough Council which states:
"Following the advice of Counsel, the Council are advised the unilateral undertaking dated 22 nd March 2007 is enforceable despite the ambiguity of the Planning Inspector's Decision. The Council intend to enforce the obligations of this s106 unilateral undertaking and require the obligations to be fulfilled in accordance with the terms of the unilateral and more specifically payment of the contributions to be made on or before commencement of development".
The Grounds of Challenge
The Claimant seeks to challenge the Decision Letter dated 23 rd April 2008 on three grounds, namely, (i) the failure to take account of relevant considerations; (ii) that the Decision Letter took account of irrelevant considerations and was a misdirection in law; and (iii) unreasonableness. There is an additional issue, addressed in the written and oral submissions, whether section 111(1) of the Local Government Act 1972 allows a Local Authority to reimburse surplus sums paid to it by a developer pursuant to a unilateral undertaking under section 106. I shall deal with each of these matters in turn.
The Legislation
The statutory provisions of the Town and Country Planning Act 1990 which require consideration are as follows:
106 Planning obligations.
(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as "a planning obligation"), enforceable to the extent mentioned in subsection (3)—
(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 (or, in a case where section 2E applies, to the Greater London Authority) on a specified date or dates or periodically.
(2)A planning obligation may—
(a) be unconditional or subject to conditions;
(b) impose any restriction or requirement mentioned in subsection (1)(a) to (c) either indefinitely or for such period or...
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