The Planning Court’s decision in R. (on the application of Khodari) v Kensington and Chelsea RLBC [2015] highlights the importance in ensuring that any section 106 planning obligations, resolved by the local planning authority as a reason for the grant of planning permission pursuant to regulation 122 of CIL, are legally valid within the statutory provisions of section 106. Otherwise you risk the quashing of such permission upon judicial review.
The case, amongst other grounds of challenge which were unsuccessful, concerned the validity of two planning obligations. The development was required to be car-free, and the first planning obligation required the developer to restrict occupiers from applying to the council for a parking permit in the adjacent residential controlled parking zone. The second planning obligation was the payment of a monitoring fee.
The essential characteristics of a planning obligation are:
- the obligation must either (a) restrict the development or use of the land in any specified way; (b) require specified operations or activities to be carried out in, on, under or over the land; (c) require the land to be used in any specified way; or (d) require a sum or sums to be paid to the authority on a specified date or dates or periodically (S106(1));
- the obligation is enforceable by the identified authority against the person entering into the obligation and any person deriving title from that person (S106(3));
- the restriction or requirement imposed under the obligation is enforceable by injunction (S106(5)); and
- the obligation must be entered into by an instrument executed as a deed which (a) states that the obligation is a planning obligation for the purposes of this section; (b) identifies the land in which the person entering into the obligation is interested; (c) identifies the person entering into the obligation and states what his interest in the land is; and (d) identifies the local planning authority by whom the obligation is enforceable (S106(9)).
His Honour, Judge Sycamore, found that the car-free planning obligation did not satisfy the essential characteristics required by section 106(3) and (5) and as such cannot be said to be a planning obligation within the terms of section 106. In particular, the obligation was only against the current owners and did not purport to bind successors in title. As the obligation was a reason of the council’s planning committee for the planning permission such permission was quashed. His Honour also found the planning obligation for the monitoring fee unreasonable (for the reasons set out in Oxfordshire County Council v Secretary of State [2015]) but in obiter indicated that if the car-free obligation was valid that the unreasonable obligation for a monitoring fee could have been dealt with by way of a declaration as opposed to the quashing of the planning permission.
