Manor Oak Homes Ltd v Secretary of State for Communities And Local Government

Where development depends on pooled contributions from other schemes, an inspector may require a high degree of confidence that the necessary infrastructure will be provided. The relevant question is whether the risk of the infrastructure not being delivered is acceptable in light of the development’s unmitigated impacts. The Community Infrastructure Levy Regulations 2010 permit lawful pooled obligations but do not prescribe the degree of certainty required before an obligation resolves a planning objection. A statement of common ground does not bind an inspector. The inspector must exercise planning judgment and may refuse permission where necessary mitigation is not beyond sensible doubt, unless an alternative mechanism such as a condition, phasing or contingency provision provides the required certainty.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of its appeal against the non-determination of an application for 375 homes in Buckinghamshire. The highways objection had been withdrawn by the highway authority and planning authority after the claimant entered into a section 106 deed providing contributions towards junction works and the South East Aylesbury Link Road.

The Inspector remained concerned that some required contributions depended on other developments which lacked planning permission and completed agreements. She concluded that the mitigation might not be delivered and that the residual cumulative highway impact could therefore be unacceptable or severe. The central issues were whether she had required an unlawful degree of certainty, failed to engage with the evidence, or gave inadequate reasons for departing from the parties’ agreement.

1. The challenge was dismissed. The Inspector had not applied an unlawfully high or unattainable standard by requiring certainty that the necessary highway infrastructure would be provided.
2. The applicable question was one of planning judgment. The parties agreed that the proposed highway measures were necessary and that the claimant’s contributions alone would not provide the complete mitigation. If the other developments did not proceed, the necessary works might not be funded, leaving the claimant’s development with an unresolved highways objection.
3. “Certainty” in the Inspector’s reasoning meant that delivery of the necessary infrastructure had to be beyond sensible doubt. It did not mean absolute certainty. The Inspector was entitled to consider the risk of unmitigated highway harm against the agreed necessity of the works and the policy concern that residual cumulative impacts should not be severe.
4. The Community Infrastructure Levy Regulations 2010 did not establish a statutory test governing the required probability of delivery. Regulations 122 and 123 addressed when obligations could be reasons for granting permission and the pooling of contributions. They did not require an Inspector to treat pooled contributions as resolving an objection, or prevent consideration of the risk that the infrastructure would not be built.
5. The deed was a material consideration, but the Inspector was entitled to reject it as insufficiently certain. A statement of common ground and the withdrawal of the highway authority’s objection did not bind her. She accepted the highway authority’s technical assessment but was entitled to reach her own judgment on the likelihood of the contributing schemes and infrastructure coming forward.
6. The reasons were adequate. No elaborate analysis was required. The claimant knew that it needed to provide certainty, whether through a negative condition, phasing, contingency provisions, increased contributions or another mechanism. The Inspector was not required to devise such arrangements herself.

The claimant appealed under section 288 of the Town and Country Planning Act 1990 against the Planning Inspector’s dismissal of its appeal concerning the non-determination of its planning application. The High Court dismissed the statutory challenge.