Police And Crime Commissioner for Leicestershire, R (On the Application Of) v Hallam Land Management Ltd & Ors

In a challenge to planning permission, dissatisfaction with the timing or structure of planning-obligation contributions does not establish irrationality merely because another arrangement might have been preferable. The court must assess whether the planning authority considered the relevant matters and reached a rational and sustainable conclusion.

A planning committee may authorise officers to settle the precise terms of a section 106 agreement through further negotiation. A legitimate expectation of consultation requires a clear and unambiguous representation; negotiations and consideration of representations do not, without more, create an expectation of agreement on final terms. A failure to comply with a planning-register obligation will not invalidate permission without material prejudice.

The claimant, the Police and Crime Commissioner for Leicestershire, challenged Blaby District Council’s grant of outline planning permission for the New Lubbesthorpe development. The challenge concerned the section 106 agreement, particularly the timing and certainty of contributions towards police equipment and premises.

Four grounds were advanced: irrationality; failure to refer the final agreement back to the planning committee or give adequate reasons; breach of a legitimate expectation of consultation; and breach of article 36 of the Town and Country Planning (Development Management Procedure) (England) Order 2010. The central issues were whether the Council had acted unlawfully in settling the agreement and whether any register omission caused prejudice.

1. Ground 1. The claim that the police contributions were inadequately timed or insufficiently certain did not meet the high threshold for irrationality. The Council had considered the police position, the Community Infrastructure Levy requirements, the developers’ cash-flow concerns, the viability and deliverability of the scheme, and the wider package of infrastructure obligations. Its conclusion was rational and sustainable, although aspects of the trigger mechanism were unsatisfactory and open to legitimate criticism.
2. Ground 2. The planning committee’s resolution required the section 106 agreement to secure CIL-compliant policing infrastructure, with the precise terms to be settled by further negotiation. That authorised officers to conduct the negotiations. A return to the committee was not required merely because the final agreement did not reproduce the police request.
3. Ground 3. A course of dealing may in principle create a legitimate expectation of a particular procedure where there is a clear and unambiguous representation. Here, the communications showed negotiation and consideration of the police representations, but contained no unequivocal promise that the police would be consulted on the final level or timing of contributions. No specific duty to make further inquiries arose.
4. Ground 4. Article 36(3)(b) did not clearly require every travelling draft of a section 106 agreement to be placed on the local planning register. In any event, there was no evidence that the claimant had checked the register before permission was granted, so any breach could not have caused prejudice or affected the outcome.
5. The court granted permission to seek judicial review on Grounds 1 and 3 for arguability, but dismissed those substantive claims. Permission was refused on Grounds 2 and 4. Permission to appeal was also refused, there being no realistic prospect of success.

This was a first-instance judicial review in the Administrative Court. Permission was granted on Grounds 1 and 3 at the rolled-up hearing, but the substantive claims were dismissed; permission was refused on Grounds 2 and 4.