How to approach the test in Regulation 122

The Court of Appeal has clarified how we should be approaching one of the key tests relating to planning obligations contained in Regulation 122.

The case arose from a challenge to a decision by Forest of Dean District Council to grant planning permission for a development which included an out of town retail store. It was accepted that the development would have a negative impact on the town centre and, as a result, a section 106 agreement was entered into to secure mitigation measures. The measures included a shuttle bus service between the town centre and the store, and contributions towards town centre improvements.

However, it was accepted that the adverse impact on the town centre would only be partly mitigated by the s.106 package of measures and, in the committee report, members of the Council’s committee were advised that due to a lack of detail within the s.106 package, it was not possible to make an informed judgement as to how far the package would mitigate the impacts of the proposal.

The Claimant argued that the obligations in the section 106 agreement failed to comply with Regulation 122 of the Community Infrastructure Levy Regulations 2010 and by attaching weight to those obligations, the Council had acted unlawfully. In the Court of Appeal, the challenge focussed on the extent to which the obligations fairly and reasonably related in scale and kind to the development (limb 3 of the Regulation 122 test), with the Appellant arguing it was not possible for the members of the Council’s committee to reach an informed view as to whether this test was met.

The Court considered whether the prospect of mitigation was too speculative to amount to a material consideration and determined that this was a matter of planning judgement. It held that while a planning decision maker must approach the assessment of the three requirements of the test in Regulation 122 with appropriate rigour, what is appropriate will vary depending on the circumstances of each case. In some cases, quantification will be necessary because the decision maker concluded that an adverse impact has to be reduced by a certain amount or in a certain way if it is to be acceptable, but this quantification will not be necessary in every case. It was held not to be necessary here given the basis upon which the Members’ decided that the application should be approved. The Council’s decision was therefore upheld.

R (on the application of Tesco Store Limited) v Forest of Dean District Council and others (2015)

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