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NHS Trust Granted Permission to Challenge Refusal to Impose £1m s.106 Contribution

Annabel Graham Paul

Sir Ross Cranston has granted permission on all grounds to the South Torbay and Devon NHS Foundation Trust to challenge the Secretary of State’s refusal to require a £1m s. 106 contribution for a large housing scheme in Newton Abbot. 

The Trust sought the financial contribution to fund hospital running costs attributable to the new residents of the development for an initial 12 month period during which the Government funding mechanism does not account for population growth. This was vigorously resisted at the inquiry by the developer and Council. 

There are a number of previous appeal decisions in South Warwickshire where such contributions were pioneered by the NHS Trust there and found acceptable by Inspectors (and the Secretary of State).

However, in this case, the Inspector and Secretary of State distinguished those decisions on the basis that the Newton Abbot site was allocated in the Local Plan and hence ought to have been taken into account by Government and the NHS in making funding arrangements.

The NHS Trust argues that this is irrational and misunderstands how the NHS funding system operates. In granting permission, Sir Ross stated: “The difficulty for the Claimant is that until increases in population are factored into the NHS funding model it faces a consequential shortfall. Arguably this point was not properly addressed and in the result the decision flawed in the manner the grounds contend.”

He also granted the Trust a Protective Costs Order capping liability at £10,000, contrary to the submissions of the Secretary of State and developer that an NHS Trust is not a ‘member of the public’ and this was not an Aarhus claim.

Annabel Graham Paul is acting for the Torbay and South Devon NHS Trust with Paul Cairnes QC of No 5 Chambers. They are instructed by Leenamari Aantaa-Collier of the Wilkes Partnership. Annabel also appeared at the inquiry for the Trust and previously for the South Warwickshire NHS Trust in the appeal decisions referred to.