Robert Hitchins Ltd, R (on the Application of) v Worcesteshire County Council & Ors

Where two planning permissions exist for the same land, a developer may generally choose which permission to implement. That choice remains possible where the permissions authorise identical development, even though works have begun under the first permission. The question whether a permission has been implemented, and whether reliance on it has been abandoned, depends on context. The expression is not a statutory term and may refer either to commencement or to the continuing process of carrying out the development.

Its meaning in a contractual undertaking is determined by construing the words objectively against the relevant background and applying business common sense. A developer may therefore move from one permission to another where the permissions are not inconsistent and the objective evidence shows that reliance on the first permission has ceased.

The claimant developer had entered into a Town and Country Planning Act 1990 section 106 agreement requiring staged transport contributions. It later obtained a second planning permission for materially identical development without that obligation.

Development had begun under the first permission. After reserved matters approval for the second permission, the site owner executed a unilateral undertaking to dispense with implementation of the first permission and proceed under the second. The claimant sought judicial review and a declaration that the later contribution instalments were no longer payable.

The remaining issues were whether the developer could elect between the permissions, whether it had objectively done so, and whether declaratory relief should be granted.

1. Election between permissions. Where two planning permissions exist for the same land, the developer may choose which to implement. This principle applies generally and is not confined to permissions granted under section 73. The permissions here authorised identical development and were not inconsistent. The fact that development had begun under the first permission did not prevent implementation of the second.

2. Meaning of implementation. “Implementation of a planning permission” is not a term used in the planning Acts and has no single fixed meaning. Depending on context, it may describe commencement of development or the continuing process of commencement, progression and completion. Its meaning in the undertaking was therefore a matter of contractual construction.

3. Construction of the undertaking. Applying the objective approach in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896, the undertaking to dispense with implementation of the first permission meant that, once the undertaking took effect, the developer would not carry out further material operations under that permission. A construction referring only to the already completed commencement would deprive the undertaking of practical effect and would contradict the commercial background.

4. Objective election. The developer’s intention was not decisive. However, the undertaking formed part of the objective background and, construed in that context, objectively abandoned reliance on the first permission. Material operations carried out on or shortly after 18 September 2014 therefore proceeded under the second permission. The triggers for the second and third transport contribution instalments were not reached before the change of authorisation.

5. Declaratory relief. A declaration may be granted where it is just and convenient under section 31(2) of the Senior Courts Act 1981 and CPR rules 54.3 and 40.20. The requirements identified in Greenwich Healthcare NHS Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749 were satisfied: there was a real question, the claimant had a real interest, and the issue had been properly argued.

6. The judicial review was allowed. A declaration was to be made that the claimant and subsequent owners could not be required to pay further instalments under the first section 106 agreement after electing to proceed under the second permission.

• High Court (Administrative Court): Patterson J refused the section 288 challenge to the Inspector’s decision and restricted the judicial review to the issue whether the developer could choose between the two permissions: [2014] EWHC 3667 (Admin).
• High Court (Administrative Court): the present court allowed the remaining judicial review ground and proposed a declaratory order.