Westminster City Council v Secretary of State for Communities and Local Government & Anor

A personal undertaking by a current owner not to apply for residential parking permits is not, without more, a planning obligation under section 106 of the Town and Country Planning Act 1990. An inspector cannot treat it as an enforceable planning obligation or as mitigation when deciding whether to permit the permanent loss of off-street parking.

Where a planning policy states that such loss will be permitted only in exceptional circumstances, the decision-maker must identify the exceptional circumstances. Policies addressing additional demand for on-street parking or development designed without on-site parking cannot replace that required analysis where the proposal principally converts existing accommodation without adding residential units.

The claimant local authority challenged a planning inspector’s decision allowing an appeal against refusal of permission to convert the remaining garage at 50 Bathurst Mews into residential accommodation. The conversion would permanently remove an off-street parking space.

The inspector treated the owner’s unilateral undertaking not to apply for residential parking permits as a binding section 106 obligation and relied on it in allowing the appeal. The authority argued that the undertaking was invalid and that the inspector had failed to apply policy TRANS23, which prohibited permanent loss of existing off-street residential parking except in exceptional circumstances.

1. New point. The court granted leave to challenge the validity of the undertaking, applying the principles distilled from Bulale v SSH [2009] QB 536 and Miskovic v SSWP [2011] 2 CMLR 20. The court should be slow to permit a new point, particularly where another party would suffer irremediable prejudice. Leave may nevertheless be granted where there is no such prejudice and the point has general importance.
2. Section 106 obligation. The undertaking did not restrict development or use of the land, require operations or activities to be carried out, require the land to be used in a specified way, or require payment of money. It was therefore a purely personal undertaking by the current owner. It did not run with the land, was not enforceable under section 106, and could not be registered as a local land charge.
3. Effect on the decision. The inspector plainly took the undertaking into account as a reason for granting permission. His consideration of its enforceability and compliance with regulation 122 of the Community Infrastructure Levy Regulations 2010 would have been irrelevant otherwise. The decision was therefore quashed on this ground.
4. TRANS23. The permanent loss of an existing off-street residential parking space was governed by paragraph (A), which applied to conversions as well as new residential development and permitted such loss only in exceptional circumstances. The inspector failed to identify any exceptional circumstances.
5. Paragraphs (B) and (D) did not provide an alternative route to permission. Paragraph (B) concerned likely additional demand for on-street parking, which this conversion did not create. Paragraph (D) required all specified conditions, including that on-site parking be physically impossible or impracticable and that key UDP objectives would be put at risk. Those conditions were not met. The inspector had therefore misunderstood or misapplied TRANS23 and failed to give adequate reasons, contrary to the approach stated in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953.
6. The inspector’s decision of 31 October 2011 was quashed.

First-instance judicial review of a planning inspector’s decision dated 31 October 2011. The decision was quashed.