Handing site to Council legitimate planning obligation

Regulation 122 of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”) is a codification of principles developed in the case law – for example, in Tesco Stores Ltd v Secretary of State for the Environment [1995] – and provides:

“122(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is –

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) fairly and reasonably related in scale and kind to the development.”

Hampton Bishop Parish Council, R (On the Application Of) v Herefordshire Council [2014] concerned Hereford Rugby Club’s proposal to relocate from their current ground to an out-of-city ground. The club proposed development included nearly two hundred dwellings which would finance the new sports facilities.

One of the planning obligations entered into under section 106 of the Town and Country Planning Act 1990 (“1990 Act”) was for the transfer of the Rugby Club’s existing ground to the Council for £1 on completion of the move to the new site.

That proposed obligation was taken into account by the Council as a material consideration favouring the grant of planning permission.

The issue here was whether the Council thus acted in breach of regulation 122 of the CIL Regulations.

The Claimant said that the obligation to transfer the existing ground to the Council was not “directly related to the development” within the meaning of paragraph (2)(b) of the CIL Regulation:

1. The development would be several kilometres away from the existing ground.

2. The users of the development would have no continuing connection with the old ground.

3. The obligation related simply to the transfer of the freehold interest in the ground to the Council, with no restriction on use.

The transfer proposal had formed no part of the Rugby Club’s original application for planning permission but emerged, in a way that has never been explained, between the date of the planning officer’s first report (which strongly recommended against the grant of planning permission) and the Planning Committee’s first meeting.

In a judgment which took a wide view of the CIL Regulation the Court of Appeal said the transfer obligation was directly related to the development.

The existing ground would be released as a direct result of the development which was the subject of the planning application.

So, the ground’s future use was one of the land use consequences of the Council’s decision.

The ground’s existing use for sport might have continued anyway but the transfer to the Council, even without a restriction, would make that more likely.

This was very different from the Council “buying” planning permission which was what had been alleged.

It fitted comfortably within the requirement that the planning obligation be directly related to the development.

The same arguments could apply in a lot of cases and it will be interesting to see if others follow suite.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.