Millgate Developments Ltd, R (on the application of) v Wokingham Borough Council

A planning obligation entered into under Town and Country Planning Act 1990, section 106, is enforceable according to its terms once its specified conditions have occurred. An inspector’s view that contributions lack evidential justification, expressed when determining a planning appeal, does not by itself decide the separate question of enforceability.

On an application concerning modification or discharge, the authority must ask whether the obligation continues to serve any useful planning purpose. Judicial review asks whether a reasonable authority could have reached that conclusion; it does not permit the court to reassess contribution levels. A local authority may refund surplus sums under section 111(1) of the Local Government Act 1972.

The claimant developer challenged the Council’s letter requiring compliance with a unilateral planning undertaking dated 22 March 2007. The undertaking required infrastructure contributions if planning permission was granted and development commenced.

Planning permission had been granted on appeal. The inspector considered that the Council had not shown that the contributions were necessary under the relevant planning policies and gave the undertakings little weight in determining the appeal. The Council nevertheless concluded that the undertaking remained enforceable and served a useful planning purpose.

The claim alleged failure to consider relevant matters, reliance on irrelevant considerations or a misdirection in law, and unreasonableness. A further issue concerned the Council’s power to refund any surplus contributions.

1. Enforceability. The unilateral undertaking was voluntary and conditional only on the grant of planning permission and commencement of development. Both conditions had occurred. It contained no condition that enforcement depended on an inspector finding the contributions necessary. The inspector’s comments concerned the weight given to the undertaking in deciding the appeal, not its enforceability.
2. Useful planning purpose. The relevant question under section 106A was whether the obligation continued to serve any useful planning purpose. Applying The Queen on the application of Batchelor Enterprises Ltd v North Dorset District Council [2003] EWHC 3006 (Admin), judicial review asked whether a reasonable authority could reach that conclusion. Applying R (on the application of the Garden and Leisure Group Ltd) v North Somerset Council [2003] EWHC 1605 (Admin), the authority had to consider the application as a whole.
3. The Council had investigated the continuing planning justification for the contributions and considered the relevant planning advice and policy. The claimant’s evidence invited the court to reconsider the appropriate amounts, which was a merits exercise outside judicial review.
4. Relevant and irrelevant considerations. The Council was entitled to rely on the principle in Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636 that enforceability depended on the undertaking’s provisions rather than the degree of nexus with the development. That was not an irrelevant consideration or a misdirection.
5. Unreasonableness and refund. Enforcement of an enforceable undertaking, where the authority considered that it continued to serve a useful planning purpose, was not Wednesbury unreasonable. The threshold identified in The Queen on the application of Newsmith Stainless Ltd v Secretary of State for Environment, Transport and The Regions [2001] EWHC Admin 74 was not met. Under section 111(1) of the Local Government Act 1972, the Council had a subsidiary power to refund surplus sums after applying amounts reasonably required to mitigate the development’s effects. The claim was dismissed in its entirety.