An obligation can only be imposed on a planning applicant under a Section 106 Agreement or Unilateral Undertaking if (amongst other things) it is necessary to make the development acceptable in planning terms.
In considering whether mitigating measures might make the adverse impacts of a proposed development acceptable in planning terms, the decision-maker must consider the nature and extent of the forecast adverse impacts and how the measures will deal with those impacts.
But, following the case below, that does not mean that the precise detail of the measures has to be specified at or before those planning obligations are entered into, and then concreted into those obligations. Especially when the planning authority is going to have control over the monies committed by the developer.
In the High Court case of Trashorfield Ltd, R (on the application of) v Bristol City Council & Ors  the Claimant said the Planning Officers’ Report had admitted that the requirements (above) would only be met if a specific package of measures were identified and agreed following consultation. In other words that the Planning Committee had approved the application only on the basis) that that package of measures would be so identified and agreed with relevant stakeholders before any Section 106 Agreement was entered into.
In fact no such consultation or specific measures had been identified or agreed prior to the Section 106 Agreement. Nor had these yet happened.
So the Claimant said the Section 106 Agreement was:
(1) at odds with the legislative regime, especially regulation 122(2) of the Community Infrastructure Levy Regulations 2010 (“the CIL Regulations”) which limits section 106 obligations to those which are necessary to render the proposed development acceptable in planning terms; and
(2) beyond the powers of the relevant Planning Officer under his delegated powers.
The High Court Judge had last year ruled on the similar case of R (Hampton Bishop Parish Council) v Herefordshire Council .
With reference to the proposed Retail Impact Risk Management Package the Officers’ Report had reminded the Council’s Planning Committee that:
“It is essential that any future scheme of mitigation is compliant with Part 122 of the [CIL] Regulations. This states that measures have to be necessary to make the development acceptable in planning terms; directly related to the development and fairly and reasonably related in scale and kind to the development.”
So in deciding as they did the Planning Committee plainly had this requirement in mind.
The judge said the grant of planning permission was inconsistent with neither (i) the basis upon which the Planning Officer approved the application, and thus was not outside his powers as delegated to him by the Planning Committee; nor (ii) the CIL Regulations.
The potential Retail Impact Risk Management Package would involve a total developer contribution of £202,500. split between management and project costs over a 3 year period. The split would be subject to agreement with the Council, stakeholders and other community groups.
The essence of the Officers’ Report was that if the developer retained control over the monies it had committed to retail impact mitigation, a mechanism would be needed in the planning agreement to make sure that there was proper consultation on the steps to be taken and that the developer was tied into consulting on and performing the measures that the Council considered appropriate. Otherwise, the measures might not be appropriate and as a result, the planning obligation might not be such as to make the development acceptable in planning terms.
In fact the developer did not commit a sum of money that they would spend on retail impact mitigation measures. Instead the developer paid a contribution to retail impact mitigation over to the Council, in two instalments, so that the Council’s commitment to apply funds to a town centre manager apart, the measures it was spent on, and their appropriateness in planning terms, were subject to consultation with those involved with the Town Centre and also to some tweaking to reflect the circumstances at the time of expenditure, but otherwise entirely in the control of the Council.
As the moneys were to be controlled by the Council, there had been no point deciding now what specific measures should be taken.
In fact to have pre-agreed and enshrined in the planning obligation “specific identified measures” for projects funded by that money, that would be implemented possibly five years hence, would have been difficult, unwise and (in terms of the CIL Regulations) quite unnecessary.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.