Mansfield District Council, R (On the Application Of) v Secretary of State for Housing, Communities and Local Government

Under section 106A of the Town and Country Planning Act 1990, the question is whether the obligation serves any useful purpose. The purpose need not be confined to a planning purpose. The court must identify the current obligation, determine the purpose it serves, decide whether that purpose is useful, and, if so, consider whether the proposed modification would serve it equally well.

An obligation requiring recovery of expenditure incurred by a local planning authority to facilitate development may serve a useful public purpose, even where the infrastructure already exists and the payment is not necessary to make later development acceptable. Failure to address that purpose is an error of law, not merely a planning judgment.

Mansfield District Council challenged an Inspector’s decision allowing an appeal under section 106B of the Town and Country Planning Act 1990. The appeal followed the Council’s failure to determine an application by Mr Clark to discharge a planning obligation requiring payment of the balance of a highway contribution.

The Inspector concluded that the contribution no longer served a useful purpose because the road had already been constructed and was not necessary to make the residential development acceptable. The Council argued that the Inspector had applied the wrong test and had failed to consider the purpose of recovering the Council’s expenditure. The central issues were the correct construction of section 106A and the effect of late written representations.

The claim succeeded and the Inspector’s decision was quashed.

1. Procedural issue. The Council’s principal case had been presented inadequately and its central point was raised late. Under regulations 16 and 17 of the Town and Country Planning (Written Representations Procedure) (England) Regulations 2009, the Secretary of State could ordinarily decide the appeal without considering late material. However, the Inspector remained obliged to apply the law. The point was a legal issue, had been brought to her attention before the decision, and could have been admitted by extending time. It was therefore inappropriate to refuse the claim on procedural grounds.
2. Statutory test. The correct approach under section 106A was that stated in R (The Garden and Leisure Group Ltd) v North Somerset Council [2003] EWHC 1605 (Admin): identify the current obligation, its purpose, whether that purpose is useful, and whether the obligation would serve it equally well if modified.
3. The phrase “useful purpose” was not limited to “useful planning purpose”. The statute contained no such qualification. The critical question was whether the obligation served a useful function whose absence would make maintaining it pointless. It was not determinative that the contribution was unnecessary to make the residential development acceptable, or that the road had already been constructed.
4. The obligation had an obvious useful purpose: recovering expenditure incurred by the Council in constructing the road that facilitated development. Encouraging co-operation between local planning authorities and developers was an additional public purpose. The Inspector failed to identify and consider those purposes, and therefore made an error of law.
5. Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Ltd [2017] UKSC 66 did not govern the case. The historic connection between the road and the development was real and substantial, unlike an obligation wholly unconnected with the burdened land. Nor did Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636; [1995] 1 WLR 759 prevent a section 106A application. Once binding, however, an obligation could not be challenged on the ground that it lacked a sufficient nexus with the development.