Unnecessary Section 106 Contributions offended CIL Regulations

Regulation 122(2)(a) of the Community Infrastructure Levy Regulations (CIL) 2010 provides that:

“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.”

In the High Court case of Midcounties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council Trilogy & Anor [2015] the Claimant said that the Defendant planning authority adopted an inconsistent and therefore irrational approach to contributions being required under a section 106 agreement; and/or (b) there was a breach of Regulation 122(2)(a).

Special complaint was made against paragraphs of the Planning Officers’ report in which it was stated :

on the one hand that the section 106 contributions were:

– “necessary” to make the development acceptable in planning terms; and
– directly related to the development; and
– fairly and reasonably related in scale and kind to the development

even though they would not overcome or offset the impact of the scheme on the
town centre

and were therefore compliant with Regulation 122; and

on the other hand that even without the section 106 benefits
the grant of planning permission was justified here despite the conflicts with
planning policy.

Given that the second of these assertions was repeated several times in the Officer’s Report, the Claimant said the section 106 benefits were NOT actually “necessary” in order to render the development acceptable and Regulation 122 had been infringed.

The Court said that in fact nowhere in the Officers’ report had it been explained why the section 106 benefits were “necessary” to make the development acceptable.

To the contrary, the report explained elsewhere that the section 106 benefits could be ignored and the development would still be acceptable in planning terms.

Accordingly, the approach taken by the planning authority to the balancing judgment infringed the CIL regulations and so was flawed by an error of law.

Nor would the Court exercise its discretion to decline to quash the planning permission on this ground.

The balancing judgment was for the planning authority. The Court could not anticipate what the outcome would be if the planning authority undertook the exercise in accordance with a legally correct approach. It may be different.

So the planning permission was quashed on this ground. It was quashed on another ground too but this one would have sufficed.

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