Permission quashed for failure to consult on Section 106 Agreement
A decision to approve the variation of a planning permission for 90 residential dwellings has been quashed on the grounds of procedural unfairness in R(Wet Finishing Works Ltd) v Taunton and Deane BC  EWHC 1837 (Admin).Jack Parker acted on behalf of the successful Claimant, the owner of a derelict II* listed Mill, the restoration of which was the justification for the residential development.
The decision is an interesting example of the extent to which local planning authorities are required to consult where they approve the variation of an existing planning permission subject to a fresh s. 106 Agreement. The decision leaves open the potentially significant question as to whether a LPA is required to publish a draft s. 106 Agreement on the planning register prior to the grant of permission and raises interesting questions about the extent of an LPA’s powers under s. 73 of the Town and Country Planning Act 1990.
Planning permission was originally granted for 84 residential dwellings in 2012 on a site adjacent to the Mill. To bring about the Mill’s restoration, the s. 106 Agreement accompanying the planning permission made provision for the Payment by the residential developer of a “Heritage Asset Contribution” in the sum of £780,000 to be spent by the Claimant on a defined scheme of restoration.
In 2015, the residential developer applied to vary the 2012 permission pursuant to s. 73 TCPA 1990 in order to, among other things, increase the number of dwellings from 84 to 90. However, the Council and developer also entered into a fresh s. 106 Agreement which made significant changes in relation to the payment of the Heritage Asset Contribution without consulting the Claimant. The Court held that the failure to consult the Claimant (as the owner of the heritage asset which the residential scheme was intended to benefit) in relation to the proposed terms of the s. 106 Agreement was procedurally unfair.
The Court left open the question as to whether and to what extent Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires a draft s. 106 Agreement to be published on the planning register prior to the grant of permission.
The Court dismissed the Claimant’s contention that there was an inconsistency in the permission (and thus that the decision was outside the Council’s powers under s. 73) on the basis that the conditions allowed the developer to build 90 dwellings even though the grant of permission was only for 84 dwellings. The Court held that, so long as what was given permission by way of the variation was not a “fundamental alteration” of the original proposal (by reference to R v Coventry City Council, ex p. Arrowcroft Group plc  PLCR 7), a condition could lawfully give permission for an increased level of development (in this case 6 additional dwellings) than had originally been granted.