The Court of Appeal in Oates, R (on the application of) v Wealden District Council & Anor [2018] EWCA Civ 1304 has recently had an opportunity to consider a key concern of local planning authorities. Namely, can a planning application be refused where the public infrastructure necessary to make the proposed development acceptable in planning terms cannot be secured due to the restrictions of regulation 123(2)&(3) of the Community Infrastructure Levy Regulations 2010 (“the CIL Regs”)?
The CIL Regs
Regulation 123(2)&(3) provides as follows:
(2) A planning obligation may not constitute a reason for granting planning permission for the development to the extent that the obligation provides for the funding or provision of relevant infrastructure (including … through requiring a highway agreement to be entered into).
(2A) … a condition falling within either of the following descriptions may not be imposed on the grant of planning permission:
(a) a condition that requires a highway agreement for the funding or provision of relevant infrastructure to be entered into;
(b) a condition that prevents or restricts the carrying out of development until a highway agreement for the funding or provision of relevant infrastructure has been entered into.
(3) Other than through requiring a highway agreement to be entered into, a planning obligation (“obligation A”) may not constitute a reason for granting planning permission to the extent that:
(a) obligation A provides for the funding or provision of an infrastructure project or provides for the funding or provision of a type of infrastructure; and
(b) five or more separate planning obligations that:
(i) relate to planning permissions granted for development within the area of the charging authority; and
(ii) which provide for the funding or provision of that project or provide for the funding or provision of that type of infrastructure, have been entered into on or after 6th April 2010.
(4) …
“relevant infrastructure” means— (a) where a charging authority has published on its website a list of infrastructure projects or types of infrastructure that it intends will be, or may be, wholly or partly funded by CIL (other than CIL to which regulation 59E or 59F applies), those infrastructure projects or those types of infrastructure; (b) except where paragraph (c) applies, where no such list has been published, any infrastructure; or (c) in relation to any planning obligation requiring a highway agreement to be entered into or condition falling within paragraph (2A), where no such list has been published, no infrastructure.
The facts
The case concerned an outline planning permission for a development of up to 390 dwellings in East Sussex. Initially, East Sussex County Council (as local highway authority) had advised that traffic generated by the development would be unacceptable in the absence of improvements to several highway junctions. Such works were already included on the council’s CIL list (i.e. was ‘relevant infrastructure’ under Reg 123) and, therefore, they objected to the proposal on the grounds that there could be no guarantee that the CIL works would be completed before the houses were occupied.
Following legal advice, the county council then withdrew its objection, accepting that a requirement that these highway works are delivered prior to the development was inconsistent with their inclusion on the CIL list. The council subsequently granted planning permission without a Grampian condition tied to the provision of the CIL works.
The decision
The Court of Appeal described the provisions in regulation 123 as “adjustments to the statutory scheme where it allows and requires local planning authorities, when determining applications for planning permission, to have regard to planning obligations as material considerations, and where it provides the power to impose planning conditions”.
Importantly, in determining that the county council reasoning for withdrawing their objection was legally incorrect, the court noted that the regulations do not do the following:
- They do not compel a local planning authority to grant planning permission for a proposed development if, for whatever reason, that development is unacceptable in planning terms, or if it cannot be made acceptable either by a planning obligation, or by the imposition of conditions.
- They do not preclude planning permission being refused if, for example, the local planning authority considers that the local road network will not be able to cope satisfactorily with the traffic generated by the proposed development; and
- They do not preclude planning permission being granted subject to a lawful condition specifically preventing the occupation of the development until necessary infrastructure, such as the improvement of a particular road junction, has been provided, even if that is not within the power of the applicant.
Ultimately, despite the error of the county council as to their reasoning for withdrawing their objection and comments to the council, the court in dismissing the appeal found that the council’s planning officer had not in fact included such comments, or adopted such error, within the substance of her assessment of the acceptability of the proposed development.
Principally, the planning officer’s finding was that there would not be a severe cumulative impact on the highway network because most of the infrastructure works paid by CIL were already programmed and were likely to be completed before the housing development was fully occupied. In particular, in finding the council made no error at law (unlike the county council), the court noted that the planning officer did not suggest that if it was judged that the scheme would be unacceptable in highway terms then the council nevertheless had to grant planning permission, nor that it was impossible to impose a Grampian condition preventing development until the infrastructure works had been completed.
Lesson: The Court of Appeal has made clear the fact that planning obligations and conditions securing necessary infrastructure works may be precluded as material considerations within the planning judgement, only by the operation of regulation 123, does not mean that planning permission must be granted in their absence. In such case, it is likely that in order for the proposed development to be acceptable in planning terms, a Grampian condition will be necessary thereby preventing development until the infrastructure works (paid by CIL (Reg 123(2)&(2A)) or 5 secured planning obligations (Reg 123(3)) have been completed.
