Summary
A planning authority may treat a s.106 obligation as a reason for granting permission only if all three statutory tests in the Community Infrastructure Levy Regulations 2010, reg.122(2), are met. An NHS provider seeking a healthcare contribution must show the existence and amount of a residual funding gap after allowing for NHS funding linked to population growth. Without that evidence, the contribution is not necessary and cannot lawfully be required. Authorities may prioritise essential infrastructure and affordable housing on viability evidence already available. Officer reports may fairly summarise technical advice, and underlying reports need not be disclosed where exempt or irrelevant. Procedural non-compliance with background-paper duties does not automatically invalidate permission; material prejudice and the statutory permission-stage test remain decisive.
Factual background
The Trust, an NHS provider, sought judicial review of planning permission for a large mixed-use urban extension. It challenged the authorities’ refusal to secure a Town and Country Planning Act 1990 s.106 contribution towards an alleged first-year acute healthcare funding shortfall.
The renewed permission application was heard on a rolled-up basis with the substantive hearing on ground 2. The central issues were whether the authorities failed to investigate viability and competing infrastructure priorities, breached duties concerning background papers, gave adequate reasons, relied on an irrelevant payment model, or misled members about GP infrastructure. The court also considered disclosure and whether any procedural breach could have materially affected the outcome.
Held
The renewed application for permission to apply for judicial review was refused on grounds 1, 2, 3, 4 and 6. Ground 5 had been abandoned.
- Planning obligations. Under reg.122(2) of the Community Infrastructure Levy Regulations 2010, necessity, direct relationship, and fair and reasonable scale and kind are legal requirements. Their application is an evaluative planning judgment subject to Wednesbury review. The court applied the principles in R (Working Title Films Limited) v Westminster City Council [2017] JPL 173, Good Energy Generation Limited v Secretary of State for Communities and Local Government [2018] JPL 1248 and Smyth v Secretary of State for Communities and Local Government [2015] PTSR 1417.
- Healthcare funding. The Trust had not demonstrated the existence or amount of a residual funding gap after accounting for NHS funding for population growth. The authorities were entitled to examine block-contract arrangements and payment by results. They had not assumed that the Trust could simply change its contracting model. Following R (University Hospitals of Leicester NHS Trust) v Harborough District Council [2023] EWHC 263 (Admin), the contribution could not lawfully be required without establishing necessity under reg.122(2)(a).
- Reports, inquiries and disclosure. Officers’ reports are read with reasonable benevolence and flexibility and need not record every representation. Technical viability advice may be summarised if the report is sufficiently clear. The Tameside duty leaves the manner and intensity of inquiry to the decision-maker, subject to Wednesbury review. Disclosure in judicial review is exceptional and must be relevant and necessary for fair resolution; material not before the decision-maker cannot be used to establish irrationality.
- Background papers. The viability appraisals relied on commercially sensitive developer information. The court held that they were exempt under s.100D(4) and Schedule 12A to the Local Government Act 1972. R (Holborn Studios Limited) v London Borough of Hackney [2021] JPL 17 was distinguished because it concerned later national policy. The approach in R (Perry) v London Borough of Hackney [2015] JPL 454 was applied.
- Effect of procedural breach. A breach of s.100D would not automatically invalidate the permission. The court must consider statutory intention, substantial compliance and material prejudice. In any event, it was highly likely that the outcome would have been the same, so permission was refused under s.31(3D) of the Senior Courts Act 1981. The court also assumed, without deciding, that a common-law duty to give reasons arose, and held that the reasons given were clear and sufficient.
The court’s approach to earlier authorities
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Appellate history
This was a first-instance rolled-up permission hearing. Steyn J had refused permission on paper on grounds 1, 3, 4, 5 and 6 and adjourned ground 2. The present court considered grounds 1, 2, 3, 4 and 6 and refused permission on each.
Key cases cited
The 30 most senior of 33 authorities cited.
- Dover District Council v CPRE Kent [2017] UKSC 79
- Morge (FC) v Hampshire County Council [2011] UKSC 2
- Tweed v Parades Commission for Northern Ireland [2006] UKHL 53
- Regina v. Soneji and another (Respondents) (On Appeal from the Court of Appeal (Criminal Division)) [2005] UKHL 49
- South Bucks District Council and another (Respondents) v. Porter (FC) (Appellant) [2004] UKHL 33
- Regina v London Borough of Hammersmith and Fulham, Ex p Burkett [2002] UKHL 23
- Balajigari v The Secretary of State for the Home Department [2019] EWCA Civ 673
- Mansell vTonbridge And Malling Borough Council [2017] EWCA Civ 1314
- R v Selby District Council, Ex parte Oxton Farms [2017] PTSR 1103
- Blue Holdings & Ors v National Crime Agency [2016] EWCA Civ 760
- Smyth v The Secretary of State for Communities and Local Government & Ors [2015] EWCA Civ 174
- Secretary of State for Communities and Local Government v Hopkins Developments Ltd [2014] EWCA Civ 470
- Suffolk Energy Action Solutions SPV Limited, R (on the application of) v The Secretary of State for Energy Security and Net Zero [2023] EWHC 1796 (Admin)
- The University Hospitals of Leicester NHS Trust, R (on the application of) v Harborough District Council [2023] EWHC 263 (Admin)
- Save Warsash and the Western Wards, R. (On the Application of) v Fareham Borough Council [2021] EWHC 1435 (Admin)
- Campaign To Protect Rural England, R (On the Application Of) v [2019] EWHC 3458 (Admin)
- R (Working Title Films Limited) v Westminster City Council [2017] JPL 173
- Plant, R (on the application of) v Lambeth London Borough Council [2016] EWHC 3324 (Admin)
- Joicey, R (on the Application of) v Northumberland County Council [2014] EWHC 3657 (Admin)
- Perry, R (On the Application Of) v Newmark Properties Ltd & Ors [2014] EWHC 3499 (Admin)
- Hayes, R (on the application of) v Wychavon District Council & Anor [2014] EWHC 1987 (Admin)
- Maxwell, R (on the application of) v Wiltshire Council [2011] EWHC 1840 (Admin)
- English, R (on the application of) v East Staffordshire Borough Council & Anor [2010] EWHC 2744 (Admin)
- R (Waltham Forest London Borough Council and others) v Secretary of State for the Environment [2010] EWHC 3358 (Admin)
- Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin)
- R (Wyatt) v Fareham Borough Council [2022] Env.L.R. 7
- R (Holborn Studios Limited) v London Borough of Hackney [2021] JPL 17
- Good Energy Generation Limited v Secretary of State for Communities and Local Government [2018] JPL 1248
- Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041
- R v Mendip District Council, Ex p Fabre (2000) 80 P & CR 500
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Cases citing this case
7 later cases · 7 positive
Most senior citing decisions:
- Dr Rosalind Bradbury, R (on the application of) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) [2025] EWCA Civ 489 approved
- Code Students (Nottingham) Limited, R (on the application of) v Nottingham City Council [2026] EWHC 2110 (Admin) applied
- Guardians of Whitewebbs Park CIC v London Borough of Enfield [2026] EWHC 1916 (Admin) applied
- Wild Justice, R (on the application of) v Pembrokeshire Coast National Park Authority [2025] EWHC 2249 (Admin)
- Greenfields (IOW) Limited, R (on the application of) v Isle of Wight Council [2024] EWHC 2107 (Admin)
- Lidl Great Britain Limited, R (on the application of) v East Lindsey District Council [2023] EWHC 3210 (Admin)
- Tesco Stores Limited, R (on the application of) v Stockport Metropolitan Borough Council [2023] EWHC 3154 (Admin)
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