Batchelor Enterprises Ltd., R (on the application of) v North Dorset District Council

A local planning authority has discretion under section 106A(1)(a) of the Town and Country Planning Act 1990 to agree to modify a planning obligation before the five-year period expires. That discretion must be exercised for planning purposes and rationally. The authority must consider whether the obligation still serves a useful planning purpose. It is not bound by an earlier planning appeal decision, but it cannot simply maintain an amenity objection that the Secretary of State has rejected. Any material change of circumstances or reason for differing must be identified and explained. General guidance against early modification cannot be applied rigidly where relevant circumstances have materially changed.

The claimant owned a former service station subject to a section 106 agreement requiring part of the site to remain permanently as grassed open space. During redevelopment it was discovered that an existing access was a public highway, preventing implementation of the approved five-house scheme. The Secretary of State allowed a revised scheme involving a new access across part of the protected area, concluding that the resulting reduction in open space would not materially harm the locality.

The claimant asked the defendant to agree to modify the agreement under section 106A(1)(a). The Development Control Committee refused, relying on the continuing amenity value of the land, the voluntary nature of the agreement, the absence of an appeal before five years, and an alternative four-house scheme. The issue was whether that refusal was lawful.

1. The application succeeded. The Committee’s decision was quashed. The defendant was ordered to pay the claimant’s costs, summarily assessed at £12,852 including VAT.
2. Section 106A(1)(a) gives a local planning authority discretion to agree to modify a planning obligation before expiry of the five-year period. The discretion is not unfettered. It must further the statutory planning scheme and must not be exercised in a Wednesbury unreasonable manner.
3. The substantive question is whether the obligation still serves a useful planning purpose. Judicial review does not permit the court to substitute its own planning judgment, but it may ask whether a reasonable authority could have concluded that the obligation continued to serve that purpose.
4. The inspector and Secretary of State had considered and rejected the same amenity objections relied upon by the Committee. The Committee was not legally bound by that decision, but it was unreasonable simply to maintain the rejected view. If it wished to differ, it had to identify and explain a material change of circumstances or other particular reason.
5. The Committee failed to grapple with the Secretary of State’s conclusions and did not explain what useful planning purpose would be served by preserving the whole grassed area pending the later statutory application and appeal process. It probably misunderstood its powers by treating the wider public interest, rather than planning purpose, as sufficient.
6. Paragraph C4 of Circular 1/97 could be taken into account, but it could not be applied as a blanket rule. The guidance concerned the usual case and did not justify ignoring a genuine material change within the five-year period. The previously unknown status of access B as a public highway was such a change.

The court expressed no view on the legal effect of the public dedication of the open space or its interaction with the highway.

First-instance judicial review proceedings. Permission was granted by Stanley Burnton J on 22 July 2003. The application was allowed by Mr Justice Sullivan, who refused leave to appeal but noted that an application could be made to the Court of Appeal.