The King (Stephen Whiteside) v The Council of the London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3318 (Admin) |
| Docket Number | Case No: CO/1225/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 3318 (Admin)
HIS HONOUR JUDGE Jarman KC
Sitting as a judge of the High Court
Case No: CO/1225/2022
IN THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr George Mackenzie (instructed by Kingsley Smith Solicitors LLP) for the claimant
Mr Matthew Henderson (instructed by Browne Jacobson LLP) for the defendant
Ms Heather Sargent (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the interested parties
Hearing date: 6 December 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on Wednesday 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives..
HH JUDGE Jarman KC:
Introduction
On the 25 February 2022 the defendant as local planning authority (the authority) granted permission to the first interested party's predecessor to demolish a dwelling and garage at 158 Purley Downs Road, South Croydon and to erect two three-storey buildings comprising seven residential units with associated parking, cycle and refuse storage, and landscaping. The proposal included seven car parking spaces on site. In order to encourage sustainable methods of transport, the authority made the permission subject to an agreement (the agreement) under section 106 of the Town and Country Planning Act 1990 to secure a financial contribution of £10,500 (based on £1,500 per unit) for sustainable improvements and enhancements. These include off site car clubs with electrical vehicle charging points, on street parking restrictions, removal of residential parking permits, and creation of cycle routes. Condition 10 of the permission required that prior to occupation, 20% active and 80% passive electric charging points were to be provided on site. The report of the planning officer to the planning committee indicated that part of the financial contribution would be used to provide every residential unit with a minimum three year free membership of a local car club scheme upon first occupation.
The claimant seeks judicial review of the permission on two grounds, which Mr James Strachan KC sitting as a judge of the High Court considered to be arguable, and which I permitted to be amended. The first is that because the agreement failed to secure the free membership of a car scheme, the grant of permission did not fall within the scope of delegation of the decision and/or the committee was materially misled on this point. The second ground is that there is inadequate evidence as to how the figure of £1,500 was calculated or how the £10,500 is to be spent, and thus a failure to comply with regulation 122 of the Community Infrastructure Levy Regulations 2010.
The decision making process
The application for permission was referred to the planning committee because of the number of objections received and referral from the ward councillor. One of the consultation responses to the application came from the authority's transportation team, who made as one of its general comments that the site has very poor public transport links. The first of fifteen essential comments related to improvements to sustainable transport including but not limited to on street car clubs with electric vehicle charging points as well as such points in general. The team required a section 106 agreement to secure a contribution of £1,500 per unit towards those improvements. Reference was made to Local Plan policy SP8.12 and it was indicated that the authority and its partners will enable the delivery of electric vehicle charging points “throughout the borough to improve air quality and decarbonise private transportation over the plan period.”
Reference was also made to policy SP8.13 requiring new development to contribute to the provision of such points, car clubs and car sharing schemes. The response continued:
“The funding will go towards traffic orders at around £2,500, signing, lining of car club bay, EVCP provision including electrics and getting the car club to come to this location so set up costs for the car club. General expansion of the EVCP network in the area of the application. Funding will also be used for extension and improvements to walking and cycling routes in the area. Membership of the car club if this application is approved, must be secured for 3 years.”
The officer's report indicated that the site in question had a very poor public transport accessibility level, and that the proposed development would give rise to increased use of private cars. Paragraph 8.56 of the report sets out the requirements of the transportation team in this way:
“A contribution of £10,500 will be secured via S106 agreement to contribute towards sustainable transport initiatives in the local area including on street car clubs with electric vehicle charging points (ECVPs) within the South Croydon / Purley Oaks area as well as general expansion of the EVCP network in the area in line with Local Plan policies SP8.12 and SP8.13. The funding would go towards traffic orders at around £2500, signing, lining of car club bay, EVCP provision including electrics and set up costs for the car club. Every residential unit to be provided with a minimum 3-year membership to a local car club scheme upon 1st occupation of the unit. Funding will also be used for extension and improvements to walking and cycling routes in the area and improvements to local bus stops to support and encourage sustainable methods of transport.”
As indicated in the transportation team's response, polices SP8.12 and SP8.12 of the Croydon Local Plan 2018 provide:
“ SP8.12 The Council and its partners will enable the delivery of electric vehicle charging infrastructure throughout the borough to improve air quality and decarbonise private transportation over the plan period.
SP8.13 New development will be required to contribute to the provision of electric vehicle charging infrastructure, car clubs and car sharing schemes.”
At paragraph 8.58 the report indicated that the car parking arrangements comply with policy DM30. That deals with car parking in new development and provides, so far as relevant, that to promote sustainable growth in Croydon and reduce the impact of car parking, new development of nine or fewer residential units must provide one on-site car club/pool car parking space and that 20% of car parking spaces should have an electric charging point.
The recommendations of the officer were set out in paragraph 2 of the report under the heading “Recommendations:”
“2.1 That the Planning Committee resolve to GRANT planning permission subject to the completion of a legal agreement to secure the following: A financial contribution of £10,500 for sustainable transport improvements and enhancements.
2.2 That the Director of Planning and Strategic Transport has delegated authority to negotiate the legal agreement indicated above.
2.3 That the Director of Planning and Strategic Transport has delegated authority to issue the planning permission and impose conditions and informatives to secure the following matters:”
The conditions then listed included submission of details of electric vehicle charging points, implementation of car parking as shown on plans, and provision of cycle parking in accordance with plans. The “informatives” listed included “Granted subject to a Section 106 Agreement” and “any other informative(s) considered necessary” by the director of planning.
A meeting of the planning committee to consider the application and the officer's report was convened on 29 July 2021. The minutes of that meeting record that one member proposed a condition for finished land levels to be submitted for approval, and the amendment of another condition to require details to be agreed including boundary treatments to ensure privacy. The motion was passed to grant permission “based on the officer's recommendation inclusive of the additional conditions.” The additional conditions referred to those raised by the member. There was no express mention in the minutes of the committee of a car share scheme.
By a document called a deed of unilateral undertaking dated 9 February 2022 and signed by the owners of the site, their mortgagee, and the authority (the agreement) reference was made to the resolution made on 29 July 2021 and to the fact that the parties were satisfied that the obligations set out in the deed, so far as relevant, were necessary to make the development acceptable in planning terms and fairly and reasonably related in scale and kind to the development so as to satisfy the requirements of regulation 122. It was indicated that the agreement was made pursuant to section 106, other enabling powers therein set out and all enabling powers.
By the agreement the owners undertook to perform obligations including, as set out in schedule 2, to pay £10,500 to the authority prior to occupation of the development:
“…to be utilised towards (which could but not limited to Council exercising absolute discretion) Off-Site Car Clubs with EVCPs and/or highway changes such as on street restrictions, improvements/creation of cycle routes, removal of residential parking permit entitlement for new residential units to the present, and any, controlled parking zones within the area
Off-site car club was defined in that schedule to mean a public scheme for sharing car facilities that will be made accessible to the occupiers of the development and members of the car club operator generally which makes cars available to hire to members.
The decision notice granting permission is dated 25 February 2022.
Ground 1
Mr Mackenzie, for the claimant,...
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