Persimmon Homes North Midlands Ltd. v Secretary of State for Communities and Local Government

When assessing planning obligations, the decision-maker may consider the proposed development’s impact on the wider development planned for the area. Whether an obligation is necessary or directly related must be assessed by reference to the development plan, including relevant strategic and emerging policies. Regulation 122 of the Community Infrastructure Levy Regulations 2010 does not require the development to be examined in isolation.

Where infrastructure planning is incomplete, uncertainty about the fair apportionment of costs may justify refusing permission for piecemeal development. The court will interfere with the planning judgment only for an error of law, failure to consider material matters, consideration of immaterial matters, perversity, or inadequate reasoning.

The appellant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of its planning appeal. The application concerned 200 homes forming part of a proposed sustainable urban extension south of Earl Shilton.

The local development framework contemplated a larger development requiring coordinated infrastructure, but the area action plan remained under preparation. The appellant offered obligations addressing the immediate effects of its scheme, while the council and inspector considered that wider infrastructure and cost-apportionment issues remained unresolved. The central issue was whether those wider requirements could lawfully be considered under regulation 122 of the Community Infrastructure Levy Regulations 2010.

1. The challenge was dismissed. The inspector had been entitled to uphold refusal of permission on the ground that the proposal was piecemeal and that the infrastructure obligations could not yet be realistically assessed or apportioned.
2. Under section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the application had to be determined in accordance with the development plan unless material considerations indicated otherwise. That required consideration of the proposed 200 homes in the context of the sustainable urban extension as a whole.
3. Regulation 122 of the Community Infrastructure Levy Regulations 2010 requires a planning obligation relied on in granting permission to be necessary to make the development acceptable in planning terms, directly related to it, and fairly and reasonably related in scale and kind. Those requirements did not prevent consideration of infrastructure attributable, though not exclusively, to the particular development.
4. The emerging area action plan and the wider infrastructure requirements were relevant. The inspector could conclude that permitting the application without an appropriate contribution risked shifting costs to later developers and undermining coordinated development. Obligations that were excessive would have to be disregarded, but that did not make wider requirements irrelevant.
5. Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All England Reports 636 did not resolve whether the obligations here were sufficient or excessive. The court treated the question of necessity under regulation 122 as dependent on what was required to make the development acceptable in the context of the development plan.
6. The inspector’s conclusions involved planning judgment. There was evidence capable of supporting them, and the reasoning was readily apparent to a reasonably informed reader. No error of law, perversity, failure to consider relevant material, or inadequacy of reasoning was established.

High Court (Administrative Court): appeal under section 288 of the Town and Country Planning Act 1990 against the Secretary of State’s inspector’s decision refusing planning permission. The challenge failed.