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Comment and Analysis Masthead

CIL infrastructure and planning

Housebuilding iStock 000008203889XSmall 146x219The Court of Appeal has accepted the possibility of refusing planning permission for development which is unacceptable in the absence of CIL infrastructure. Richard Langham explains why.

In R (Oates) v Wealden District Council [2018] EWCA Civ 1304 traffic generated by a proposed development of up to 390 houses would be unacceptable in the absence of improvements to a number of junctions. Some of these works were included on the local planning authority’s CIL list. The highway authority initially objected to the proposal, inter alia, on the basis that, there could be no guarantee that the CIL works would be completed before the houses were occupied. It then withdrew its objection, accepting that, if the developer paid the relevant levy, it was doing all it could to secure the provision of the CIL works and that a requirement that these be delivered prior to the development was inconsistent with their inclusion on the CIL list. The local planning authority granted planning permission - without a Grampian condition tied to the provision of the CIL works. Permission to seek judicial review was granted by the Court of Appeal - which reserved the first instance hearing to itself under CPR52.15(3). 

The Court of Appeal held that it would have been wrong to have proceeded on the basis that it was impossible to resist unacceptable development where the necessary highway improvements were to be funded by CIL (but doubted whether this was what the highway authority really thought).  Dealing with r123 of the CIL Regulations Lindblom LJ said –

Regulations 122(2) and 123(2) prescribe circumstances in which planning obligations made under section 106 of the 1990 Act may or may not “constitute a reason for granting planning permission …”. Regulation 123(2A) identifies certain kinds of restriction that may not be imposed on a grant of planning permission by way of conditions. These provisions operate as adjustments to the statutory scheme where it allows and requires local planning authorities, when determining applications for planning permission, to have regard to planning obligations as material considerations, and where it provides the power to impose planning conditions. They do not, of course, compel a local planning authority to grant planning permission for a proposed development if, for whatever reason, that development is unacceptable in planning terms, or if it cannot be made acceptable either by a planning obligation, or by the imposition of conditions. They do not preclude planning permission being refused if, for example, the local planning authority considers that the local road network will not be able to cope satisfactorily with the traffic generated by the proposed development. Nor do they preclude planning permission being granted subject to a lawful condition specifically preventing the occupation of the development until necessary infrastructure, such as the improvement of a particular road junction, has been provided, even if that is “not within the power of the applicant …” …’

In fact, although the advice of the local planning authority’s officer included the above comments of the highway authority, this advice did not go to the substance of her assessment of the acceptability of the proposed development. This was that there would not be a severe cumulative impact on the highway network because most of the CIL works were already programmed and were likely to be completed before the housing development was fully occupied. She did not suggest that, if it was judged that the scheme would be unacceptable in highway terms, the authority nevertheless had to grant planning permission, nor that it was impossible to impose a Grampian condition preventing development until CIL works had been completed.

Richard Langham is a barrister at Landmark Chambers and appeared for the local planning authority, Wealden District Council.

Rupert Warren QC, also of Landmark Chambers, appeared for the Interested Party, Catesby Estates Ltd.

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