Peyton Davis, R (on the application of) v Oxford City Council

Financial contributions towards infrastructure may be a material planning consideration even where the delivery of particular works has not been secured. The contribution must have a connection with the development that is more than de minimis and satisfy the applicable statutory tests. The weight given to it, and whether development should be restricted until works are delivered, are matters of planning judgment, subject to rationality review.

A breach of the requirement to place a draft planning obligation on the register does not automatically invalidate planning permission. The claimant must establish substantial prejudice. Planning officers’ reports must be read fairly and benevolently. The court intervenes only where material advice has misled the decision-maker and the decision might otherwise have been different.

The claimant brought two conjoined judicial review claims challenging Oxford City Council’s decisions to grant planning permission for residential developments at Hill View Farm and land west of Mill Lane, Marston.

Permission was granted on grounds alleging that the Council had unlawfully relied on transport contributions without securing delivery of the proposed highway, cycling and public transport improvements, and had breached article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 by failing to place draft section 106 agreements on the planning register.

The central issues were whether the contributions were material and rationally sufficient, and whether the alleged procedural breach caused substantial prejudice.

1. Grounds 2A and 3A dismissed. The planning committee delegated broad authority to the Head of Planning Services to finalise, amend or delete the proposed section 106 obligations. The permissions were therefore hybrid decisions, and were not granted on the express basis that the identified cycle street and bridleway works would definitely be delivered by a particular date.
2. The officers’ reports, read fairly and without excessive legalism, advised that proportionate financial contributions towards identified transport improvements were sufficient to address the developments’ effects. References to obligations that would “secure” improvements did not materially mislead the committee.
3. Under section 70(2) of the Town and Country Planning Act 1990, and regulation 122(2) of the Community Infrastructure Levy Regulations 2010, the contributions were capable of being material. They had a real connection with the developments exceeding de minimis. Their payment was secured before occupation, and the County Council was bound to apply the money to the identified purposes or alternatives achieving similar benefits.
4. It was rationally open to the Council to treat payment of the contributions as sufficient without imposing a Grampian-style restriction requiring delivery of the works before commencement or occupation. Whether delivery was so critical that such a restriction was required depended on the circumstances and remained a matter of planning judgment.
5. Grounds 2B and 3B dismissed. The heads of terms in the published officers’ reports substantially disclosed the substance of the proposed obligations. Even if article 40(3)(b) had not been complied with in form, the claimant had shown no substantial prejudice. The Council knew that delivery by the County Council was not secured, and the representations the claimant said he would have made would not have altered the decisions.
6. The claims for judicial review were dismissed. Consideration of section 31(2A) of the Senior Courts Act 1981 was unnecessary.