Elliott & Anor v Secretary of State for Communities and Local Government & Ors

In a challenge to a planning permission, the court held that a decision-maker may choose a planning obligation rather than planning conditions where both mechanisms can secure the relevant planning objective. The decision-maker need only reach a rational view that the selected mechanism is reliable. An application for outline planning permission may include related landscaping, access, engineering works and changes of use where they form part of a scheme for the erection of buildings. In exercising planning functions, the Secretary of State’s duty under the Habitats Regulations is generally to have regard to the Habitats Directive. Planning permission need not be refused unless protected-species licensing is likely to be required and likely to be refused. Imperative reasons of overriding public interest require a balancing exercise; funding-generating elements of a wider development are not automatically excluded.

The claimants applied under section 288(1) of the Town and Country Planning Act 1990 to question the validity of the Secretary of State’s decision granting full and outline planning permission for the regeneration of Crystal Palace Park. The development included residential schemes, park improvements and works affecting bat habitats. Five grounds were advanced, concerning planning conditions and section 106 obligations, the proposed abolition of the London Development Agency, the scope of outline planning permission, the Habitats Directive and the adequacy of the Secretary of State’s reasons.

The court considered whether the Secretary of State had acted unlawfully or failed to give adequate reasons in selecting the statutory mechanisms for securing park improvements, assessing the consequences of the LDA’s abolition, treating the application as validly including outline permission, and addressing protected-species issues.

1. Planning conditions and obligations. The Secretary of State was entitled to use a supplemental section 106 agreement and replacement conditions to secure funding for park improvements. This was an alternative means of achieving the desired planning objective, rather than an attempt to circumvent the law. The central question was whether the mechanism was rationally regarded as reliable. The differences between the enforcement regimes for conditions and obligations did not undermine that conclusion. The first ground therefore failed.
2. Abolition of the LDA. The existing section 106 agreement provided for the LDA’s obligations to pass to successors or assignees and enabled Bromley to appoint a replacement Masterplan Co-ordinator. The Secretary of State was entitled to conclude that the abolition of the LDA raised no new substantive issue requiring further consideration. The issue was not a principal important controversial issue requiring express reasons. The second ground failed.
3. Outline planning permission. The application could properly be treated as an application for outline permission for the erection of buildings, with related matters reserved for later approval. The definitions of access and landscaping in the Town and Country Planning (General Development Procedure) Order 1995 were broad enough to include landscaping, earthworks, pedestrian paths and car-parking facilities. Changes of use were permissible because they were sought in the context of buildings within the relevant zones and not as freestanding applications. The third ground failed.
4. Protected species. While exercising planning functions, the Secretary of State was subject to the duty in regulation 9(5) of the Conservation of Habitats and Species Regulations 2010 to have regard to the Habitats Directive. He was entitled to rely on Natural England’s position and need not refuse permission unless it was likely that a licence would be required and likely to be refused. The Secretary of State had sufficiently considered imperative reasons of overriding public interest. The funding element of the development could form part of the wider balancing exercise. The fourth ground failed.
5. The claim was dismissed. The claimants were ordered to pay the Secretary of State’s costs of £2,500 inclusive of VAT, with no order as to the LDA’s costs.