Both permissions were subject to s.106 obligations which secured the payment of contributions to the County Council and prevented the County Council from expending those sums on anything other than the specified improvement works (or other works that delivered comparable benefits) but did not impose any positive obligation on the County Council to carry out the improvement works. The Claimant alleged that the Council’s grant of planning permission was predicated on a misapprehension that the delivery of the works would be secured in the s.106 obligation.

In particular, the Claimant alleged that the decisions were unlawful on the basis that:

i)    The City Council failed to secure the delivery of necessary transport improvement works and thereby took account of an immaterial consideration and/or acted irrationally in assuming that the s.106 obligation would deliver improvements that were not secured; and
ii)    The City Council failed to publish the draft s.106 obligations prior to the grant of planning permission, in breach of article 40(3)(b) of the Development Management Procedure Order.

The High Court rejected both grounds. 

Read fairly, as a whole and without excessive legalism, the officer’s reports made it clear that the s.106 agreements would secure financial contributions towards improvement works and did not suggest that the delivery of the works would be  secured within any particular timeframe or trigger; or indeed at all. Furthermore, the planning committee delegated authority to officers to amend the heads of terms and so could not be said to have granted permission on the basis that the delivery of those works would be secured. The Court recognised that the Claimant’s challenge raised an important point of principle, namely whether local planning authorities are entitled to take account of contributions towards infrastructure improvements without actually securing the delivery of those improvement. It held that for contributions to amount to material considerations, it was not necessary to secure both the payment of the contribution and the delivery of the relevant works.

Having regard to the decisions in Midcounties and Police and Crime Commissioners, the High Court found that the Council had substantively complied with the requirements of the DMPO by publishing the s.106 heads of terms in the officer’s report, and the Claimant had suffered no prejudice in any event. The submissions the Claimant claimed that he would have made on the draft obligation would not have affected the Council’s decision to grant permission. As such, even if the heads of terms published in the officer’s reports were insufficient to discharge the requirements of the DMPO, the Claimant had suffered no prejudice and no error of law arose.

A copy of the judgment can be found here.

Isabella Tafur acted for the successful Defendant, Oxford City Council.