Newton Longville have again been granted permission to apply for judicial review in a challenge to Aylesbury Vale DC’s planning decision making. (Their previous success was to the Council’s purported delegated authority in giving permission for another development in the Parish – the report on which received the greatest number of hits for that week in Local Government Lawyer).
This time the Parish Council challenged the failure to display a copy of the draft section 106 agreement for a development at Whaddon Road, Newton Longville on the planning register, contrary to article 40(3)(b) of the DMPO.
In the consultation on the application, the County Council had recommended requiring a contribution of £25,000 for traffic calming measures in the village. But when the completed section 106 was put on the register after the grant of planning permission the sum had been reduced to £2,567. There was no explanation of how this much lower sum had been arrived at in any of the published documents including the delegated report on the application.
The Parish Council challenged the grant of planning permission on grounds of (1) failure to comply with article 40(3)(b) by not posting any draft section 106 on the planning register, (2) breach of reg. 122 of the CIL Regulations in the calculation of the lower sum and (3) inadequacy of the reasons for it required to be given for a delegated decision under reg. 7 of the Openness of Local Government Bodies Regulations 2014.
The Council admitted the failure to comply with the DMPO but asserted that the Parish was not prejudiced because (they said) (1) there was no evidence that the Parish Council had looked for the draft 106 on the register before permission was granted or (2) that the amount of traffic calming contribution was a matter of real concern given that their objection was one of principle rather than detail and (3) that there was no indication of what the Parish Council might have said which might have resulted in any difference in the ultimate amount of required contribution.
They also produced internal email correspondence referring to the reduction and stating that they felt that the higher figure could not be justified and said that that showed that the contribution had therefore been properly assessed under the CIL Regulations and asserted that the reference in the delegated report to the traffic calming measures in the 106 in the context of the CIL Regulations was sufficient to meet the requirements of adequacy.
The Parish Council countered in relation to the prejudice argument that (1) they had indeed checked the register on numerous occasions but there was nothing on there which could have alerted them to the discrepancy in the amount of the traffic contribution (least of all a draft of the 106 – an omission they had had cause to complain about in other cases); (2) their objection was expressly qualified by saying that if permission was granted despite their objection then contributions (including traffic calming contributions) should be required in accordance with the County Council’s recommendations; and (3) they would have required both the Council and the County Council to explain the discrepancy, especially in the light of the amount of contribution recently secured on another site in Whaddon Road.
On the CIL assessment and reasons arguments they pointed out that there was nothing in the emails or the committee report which actually explained how the substantially reduced sum was arrived at, let alone having regard to the different amount secured for the neighbouring site. They also prayed in aid the principle in South Bucks DC v. Porter, citing SAVE, that an opponent of a development may be substantially prejudiced by a decision which is not explained sufficiently clearly to indicate what approach may be taken in other applications.
Mrs Justice Thornton has granted permission to apply for judicial review on all grounds.
Other features of interest in the case are the fact that the Judge has made an order allowing for cross-examination on the Parish Council’s evidence on issues in dispute. Also, the Parish Council have Aarhus claim costs protection as a “member of the public” for the purposes of CPR 45.41(2)(a), as decided in Crondall Parish Council v. Secretary of State CO/3900/2018.