In the case of R (Mclaren) v Woking Borough Council [2021] EWHC 698, the High Court held that there was no error by Woking Borough Council (WBC) in granting planning permission for the construction of a block of flats on a site that involved two separately owned pieces of land but where only one owner had executed a section 106 agreement.
The claimants applied for judicial review of WBC’s decision to grant planning permission to New Central Developments Limited (NCDL) for the demolition of existing buildings and the construction of a six-storey building comprising 46 flats on a site that encompassed both NCDL’s land and the claimants’ land. The claimants’ land comprised approximately 50% of the site.
Facts
Planning permission was granted in 2017 by WBC on the basis that there would be a section 106 agreement to secure a Strategic Access Management and Monitoring (SAMM) contribution to mitigate the effect on the Thames Basin Heaths Special Protection Area. It also contained an overage agreement to reflect the lack of affordable accommodation in the development. Following the grant of planning permission, there were negotiations between the claimants, NCDL and the WBC, including discussions about whether and at what price the claimants would be willing to sell their land. The claimants said that those negotiations were based on an assumption, and that they and NCDL would both need to execute the section 106 agreement. In 2020, NCDL executed and completed the section 106 agreement, however the claimants were neither a party, nor executed the section 106 agreement and, following the completion of the section 106 agreement, planning permission was granted.
The claimants argued that the section 106 agreement signed by WBC and NCDL was legally inadequate as it did not bind the whole site subject to planning permission. Therefore, it had failed to fulfil the conditions on which planning permission was granted, and there was no explanation of the basis on which WBC had excluded the claimants’ land from the agreement. The circumstances of the grant of permission in 2020 were materially different from the circumstances under which the planning committee had resolved to grant permission in 2017. The claimants also argued that they had a legitimate expectation to be required as a party to the section 106 agreement for the planning permission to be granted, and that WBC had failed to comply with the notice provisions in the Town and Country Planning Act 1990 section 65(5) and the Town and Country Planning (Development Management Procedure) (England) Order 2015 article 13 and article 14, which had caused them significant prejudice.
Decision
The High Court held that:
- The section 106 agreement followed the requirements of section 106 of the Town and Country Planning Act 1990. The agreement was in the form of a deed, identified the land in which the person entering the obligation had an interest and expressed the intention of NCDL to bind its freehold interest in the land. There was no legal requirement that a section 106 agreement had to bind all interests in a plan site. It was not a condition of the planning permission that the claimants were required to be a party to the section 106 agreement. The claimants had not been excluded from the agreement and could unilaterally bind themselves to it at any time if they chose to do so.
- The fact that the claimants had not signed the section 106 agreement, and were not willing sellers of their land, were not material changes of circumstances. The readiness or otherwise of the claimants to sell or enter the section 106 agreement was not material to the grant of planning permission. The fact that the ownership certificate was incorrect was a procedural issue not relevant to the planning determination and there was no need for the matter to be put back to the planning committee.
- There had been no clear unambiguous assurance or course of conduct by the Local Authority that it would not proceed with the section 106 agreement without the claimants as a party.
- The Court was not satisfied that the claimants had suffered any relevant prejudice. If they did not want the planning permission to be acted upon, they could simply do nothing until it lapsed, given the nature of permission their land was needed for the development to be implemented.
Comment
This is an interesting High Court decision, given that the standard practice had been to bind most, if not all, of the legal interest in the land which is subject to the terms of the section 106 agreement and is included in red edge of the site plan. This decision would assist developers where the negotiations between the landowners and the developer have stalled or they can’t come to an agreement in terms of price or value of the land. This allows developers to obtain planning permission and execute a section 106 agreement without consent of all the landowners who have legal interest in the land, which is subject to planning application. However, the developer will be unable to implement planning permission until he purchases the legal interest in the land from the landowners subsequently or enters a further section 106 agreement, or provides unilateral agreement further down the line.
