Morris Homes Limited, R (on the application of) v Secretary of State for Housing, Communities and Local Government

A planning obligation continues to serve a useful purpose where its substantive requirements remain capable of practical fulfilment, even if an agreed part of its approval machinery has failed. The court must construe the obligation to decide whether that machinery is essential or merely subsidiary. Where the obligation supplies sufficiently clear and objective criteria, the court may treat the machinery as non-essential and, where appropriate, substitute machinery.

On a Town and Country Planning Act 1990 section 106B appeal, reasons must be intelligible and adequate on the principal important controversial issues. A reasons challenge succeeds only where the decision cannot fairly be understood or the claimant establishes substantial prejudice.

The claimant sought judicial review of a Planning Inspector’s decision dated 8 January 2025 dismissing its appeal under section 106B of the Town and Country Planning Act 1990. The appeal concerned a planning obligation requiring an Allowable Solutions Contribution for carbon-offsetting projects.

The claimant argued that the obligation no longer served a useful purpose because the Zero Carbon Hub, whose representative was required to sit on the Project Board, had ceased to exist. It also argued that the Inspector had failed to give adequate reasons. The central issues were whether the Zero Carbon Hub’s involvement was essential to the obligation’s machinery and whether the Inspector’s reasons were legally sufficient.

1. Ground 1 failed. Section 106A(6) requires the usefulness of the obligation to be assessed at the date of the application for discharge. The relevant question was whether the obligation could still fulfil the useful purpose of funding carbon-offsetting projects despite the disappearance of the Zero Carbon Hub.
2. Applying Sudbrook Trading Estate v Eggleton [1983] AC 444, the court distinguished essential machinery from subsidiary machinery. The fact that the obligation could not operate exactly as drafted was not conclusive. The issue was whether the Zero Carbon Hub’s participation was essential to the mechanism for approving and disbursing the contribution.
3. The obligation contained a bespoke and materially simplified application of the Allowable Solutions Report. It identified permissible projects, restricted them to Peterborough, and required minimum carbon reductions calculated by reference to defined dwelling emissions. The Project Board had to establish an approval process, but the obligation did not incorporate the Report’s more elaborate auditing and verification processes.
4. The Inspector was therefore entitled to conclude that the Zero Carbon Hub’s expertise was helpful but non-essential. The obligation supplied sufficiently clear and objective criteria, and the approval machinery could operate with suitable replacement participation. The case was materially different from Manchester Ship Canal Company Ltd v Environment Agency [2017] EWHC 1340 (QB), where the contractual mechanism left the relevant data sources unidentified.
5. Ground 2 failed. Although no express statutory duty to give reasons applied, the parties accepted that the Inspector owed such a duty. The applicable standard required intelligible and adequate reasons addressing the principal important controversial issues. Read fairly and as a whole, the Inspector’s decision explained why the defined projects, contribution, carbon-reduction requirements and approval process meant that the Zero Carbon Hub was not essential. The reasons were legally adequate and no substantial prejudice was established.
6. The judicial review claim was dismissed. The court did not decide whether the claimant was prevented from relying on its own breach.

This was a first-instance judicial review claim. The claim challenged the Planning Inspector’s decision dated 8 January 2025 dismissing the claimant’s section 106B appeal.