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Neutral Citation Number: [2022] EWHC 523 (Admin) Case No: CO/2719/ IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION PLANNING COURT Royal Courts of Justice Strand, London, WC2A 2LL Date: 11 March 2022 Before : MRS JUSTICE LANG DBE
**Between :
THE QUEEN on the application of HFAG LIMITED Claimant
- and - BUCKINGHAMSHIRE COUNCIL Defendant (1) HAMPDEN FIELDS CONSORTIUM (2) TAYLOR WIMPEY UK LIMITED (3) BUCKINGHAMSHIRE HEALTHCARE NHS TRUST (4) NHS BUCKINGHAMSHIRE CLINICAL COMMISSIONING GROUP Interested Parties**
Jack Parker (instructed by Richard Buxton Solicitors ) for the Claimant Saira Kabir Sheikh QC and Michael Brett (instructed by Legal Services ) for the Defendant Morag Ellis QC (instructed by Mills & Reeve LLP ) for the Second Interested Party The First, Third and Fourth Interested Parties did not appear and were not represented Hearing dates: 23 & 24 February 2022
Approved Judgment
Mrs Justice Lang :
- The Claimant seeks judicial review of the decision of the Defendant (“the Council”), dated 24 June 2021, to grant outline planning permission for a mixed-used sustainable urban extension (“the Development”) on land between Wendover Road and Aston Clinton Road, Weston Turville, Buckinghamshire (“the Site”).
- The Claimant is a local residents’ group called Hampden Fields Action Group, which objected to the Development during the planning application process.
- The Council is the local planning authority for the area in which the Site is situated.
- The First Interested Party (“IP1”) is a consortium of landowners and developers which applied for, and has been granted, the outline planning permission. The Second Interested Party (“IP2”) is the lead member of IP1. IP1 and IP2 resist the claim.
- The Third Interested Party (“IP3”) is responsible for providing planned and emergency healthcare services in hospitals and in the community in the local area. The Fourth Interested Party (“IP4”) is responsible for commissioning primary healthcare services (including GP services) in the local area. IP3 and IP4 support the claim.
- The issue in the claim is whether the Council acted lawfully in deciding to grant outline planning permission on the basis that the only health provision made was a “doctor’s surgery”, to be provided on Site, in accordance with the terms of an agreement made under section 106 of the Town and Country Planning Act 1990 (“the section 106 agreement”), which was contrary to the representations made by IP3 and IP4. The relief which the Claimant seeks is an order quashing the grant of outline planning permission. The Claimant no longer pursues Ground 7.
- On 15 October 2021, Dove J. ordered that the application for permission and the substantive application for judicial review be listed for hearing on the same occasion at a “rolled-up hearing.” Planning history^1
- On 5 February 2016, IP1 applied for outline planning permission for the Development (to include a “doctor’s surgery”) as follows: “Outline planning permission for a mixed-use sustainable urban extension comprising: up to 3,000 dwellings and a 60 bed care home/extra care facility (Use Class C2/C3); provision of land for a Park and Ride site; a total of 6.90ha of employment land (comprising of up to 29,200 sq.m. B1c/B1/B2/B8 uses); provision of two primary schools (one 2 form entry and one 3 form entry); a mixed use local centre (3.75ha) with provision for a foodstore of up to 1,200 square metres (GFA), further retail (including a pharmacy), restaurant and café units, a doctor's surgery, gym, public house with letting rooms, professional (^1) Page references are to the hearing bundles: C = Core bundle. S = Supplementary bundle.
- The application was accompanied by an Environmental Statement (“ES”), including a ‘health impact assessment’, and a document setting out ‘heads of terms’ for the proposed planning obligation. It included the following [C/473]: “• Land for a health centre will be provided in the Local Centre and will be reserved for a period of time. The land will be marketed for a period of time (to be agreed with AVDC) at market value for the relevant healthcare uses. […]
- If deemed necessary, a temporary building will be provided to be used as a health facility for an agreed period of time.”
- The application was considered by the Strategic Development Management Committee of AVDC on 25 October 2017. The AVDC Committee resolved that the application be “deferred and delegated to officers for Approval ” subject to the completion of a section 106 agreement, to include inter alia a planning obligation to secure on-site provision of a GP surgery and/or provision of temporary services on site or within an existing nearby facility (if appropriate). At that stage, IP1 had proposed to deliver a shell and core primary care health centre of up to 600sqm.
- IP4 made representations seeking a financial contribution for a larger primary healthcare facility, which would also meet the needs of new populations from other developments in the area, in accordance with IP4’s strategy and vision.
- IP3 made representations seeking a financial contribution to cover the cost of the estimated increased demand for secondary and tertiary health care arising from the new population in the Development.
- The application was referred to the Council’s Strategic Sites Committee because in March 2020 an updated Aylesbury Transport Model was published, requiring re- consideration of the transport aspects of the Development.
- The OR for the Committee meeting on 24 February 2021 was published on 17 February
- Officers published a Corrigendum Report (“CR”) on 2 3 February 2021, replacing paragraphs 5. 321 – 5.235 of the OR, as paragraph 5.32 2 of the OR had erroneously advised that revenue funding did not come within the scope of the 2010 Regulations. The CR also advised Members of the additional representations from IP3 and IP4.
- Following the publication of the CR, IP4 provided a further calculation of the financial contribution it sought.
- At its meeting on 24 February 2021, the Strategic Sites Committee approved the application “as per the officer’s report”. It resolved, so far as is material: “That permission be deferred and delegated to the Director of Planning and Environment for approval subject to the satisfactory completion of a legal agreement to secure ….. on- site provision of a health centre (GP surgery) and/or provision of
temporary services on site or within an existing nearby facility (if appropriate) …. Members requested that officers continued to work collaboratively with the BHT and CCG on establishing a robust methodology for any future requests which was capable of feeding into the Council’s new Local Plan process.”
- Following the Committee resolution, both IP3 and IP4 complained about the manner in which the application and their requests for financial contributions had been handled (letter of 17 March 2021 [C/806-809]).
- On 24 June 2021, officers granted the outline planning permission, subject to the conditions set out in the decision notice. In the Delegated Determination report, officers considered the representations made in the letter of 17 March 2021 and responded to them. Officers concluded that the additional representations made would not be likely to alter the resolution made by Members. It was not considered necessary to refer the matter back to committee as there was no new material consideration which could affect or change the Committee’s resolution. Officers found that the completed section 106 agreement “secures all the measures anticipated and necessary to render this application acceptable in planning terms”.
- The relevant provisions of the section 106 agreement are in Schedule 8. i) By paragraph 9, the Owners covenant to engage a contractor “for the construction of the Health Centre to Shell and Core” within six months of reserved matters approval, and to “use reasonable endeavours” to secure “practical completion for the Health Centre to Shell and Core” prior to the occupation of the thousandth dwelling; ii) Paragraphs 5-6 require the Owners to market the ‘Health Centre Land’ for at least 24 months in accordance with a ‘Health Centre Marketing Strategy’; iii) Paragraph 6 absolves the Owners from the requirements of paragraphs 5, if they have not managed to transfer or lease the Health Centre Land to a “health service provider” within a specified period; iv) Paragraph 6 is subject to the following proviso: “PROVIDED THAT the Owners have first agreed in writing with the Health Commissioning Body and/or the Council an alternative mechanism to provide the Health Centre to mitigate the impacts of the Development.” v) Paragraph 10 caps the Owners’ liability under paragraphs 4-9 at £1.5 million.
- The material definitions are as follows: ““Health Centre” means a permanent health centre ….up to 600 square metres (GIA), which may be provided on the Health Centre Land in accordance with Schedule 8 hereto;
(a) necessary to make the development acceptable in planning terms; (b) directly related to the development; and (c) fairly and reasonably related in scale and kind to the development. (3) In this regulation— “planning obligation” means a planning obligation under section 106 of TCPA 1990…”
- Whether or not a proposed planning obligation meets the three limbs of regulation 122 of the 2010 Regulations is a clear matter of planning judgement for the planning decision-maker, which should not be interfered with in the absence of a legal error. In Smyth v Secretary of State [2013] EWHC 3844 (Admin) Patterson J. held, in respect of the Court’s review of a decision of a planning inspector applying the regulation 122 test (which applies equally in this respect to decisions of local planning authorities): “192. In my judgment, the role for the Inspector is to apply the law and to judge whether the obligation before him meets the statutory tests. That is a matter for his planning judgement. The role of the court is to review that judgement on conventional public law principles and no more. It is not to step into the Inspector's shoes and start exercising its own planning judgement on the matters before the Inspector. That would be an impermissible exercise of its powers.” Planning officers’ reports
- The principles to be applied when considering a challenge to a planning officer’s report were summarised by the Court of Appeal in R (Mansell) v Tonbridge & Malling BC [2019] PTSR 1452, per Lindblom LJ, at [42]: “42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a
Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin), at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council [2011] UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016] EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local
- (a) Failure to take account of relevant considerations. The OR [C/190] reported IP4’s position as being “that the current position does not strictly align with the requirements of the CCG in respect of multiple smaller sites across the Aylesbury area, however they are committed to working with the developer to achieve the ambition in the longer term.” That summary did not reflect IP4’s position in respect of the health centre proposals and was significantly misleading. The Council did not grapple with IP4’s submissions of 4 February 2019 and 19 February 2021 to the effect that the provision of a building of 600 sqm would not adequately mitigate the adverse impact on primary healthcare services because it was too small and the land offer was open to the private sector in addition to the NHS.
- (b) Irrelevant considerations taken into account. The reason given to Members at the Committee meeting why the provision of a building of 600sqm would meet primary healthcare needs was that that amount of floorspace exceeded the equivalent floorspace area (419sqm) used by the CCG to calculate the financial contribution required to deliver a larger health centre (see the oral advice given to Members by Ms Kitchen). However, IP4 had repeatedly stated that a 600 sqm health centre would be too small, and it referred to the floorspace calculations to establish what would be an appropriate financial contribution towards a larger healthcare facility.
- (c) Inadequate reasoning. There was nothing in the material available to the Claimant to enable it to understand how the proposed health centre would meet the primary health care needs of the Development, and how it would comply with the tests in regulation 122 of the 2010 Regulations. Nor were reasons given as to why IP4’s concerns had been dismissed.
- (d) Irrationality. The Claimant submitted that it was irrational for the Council to conclude that the proposal would adequately mitigate the adverse impact on primary healthcare services by reference to the equivalent floorspace requirement used in the calculation of IP4’s request for a financial contribution towards a larger health centre, without any evidence in support, and in the face of repeated representations from IP that the proposal was not viable or deliverable. Ground 2
- The Claimant submitted that officers’ advice given to Members as to the health centre provision that would be secured through the section 106 agreement was significantly misleading, and led Members to take into account irrelevant considerations. Officers advised in the CR that: “The S106 secures the offer of land and building to shell and core standard to the CCG first, and in the event CCG do not require or do not want the facility offered, it is only after further discussions with the CCG that the site would be offered on the open market.” [C/216]
- The Claimant submitted that the agreement did not “secure” the offer as it imposed a cap on the cost in the sum of £1,500,000. It was to be marketed to “relevant health providers” and there was no assurance that it would be made available to IP4 in preference to other health providers. Under the terms of the agreement, having offered
the site to a ‘health service provider’, the owner is free to market the site on the open market if, having used reasonable endeavours, it has been unable to enter into a lease or transfer at a market value to such health provider.
- It was also suggested by officers that there was “flexibility” for further discussions to take place with IP4 in order that its needs could be met at some later stage. [C/216], [C/235]. The Claimant submitted that there was no such provision for this within the section 106 agreement. Ground 3
- The Claimant submitted that Members acted upon misleading advice from officers and took into account an irrelevant factor, namely, the alleged lateness of IP4’s representations seeking a financial contribution, when deciding to proceed to grant outline planning permission at the meeting on 24 February 2021, instead of deferring a decision in order to consider IP4’s representations further. Conclusions
- In my judgment, there was ample material to justify the advice given by officers to Members, and the decisions made by the Committee, and subsequently by the delegated officers, in the exercise of their planning judgment. Officers and Members considered IP4’s representations and requests with an appropriate degree of care, but they did not accept them, and were not obliged to do so.
- At the heart of IP4’s representations was the submission that IP1 should be required to mitigate the adverse impacts of the Development on health services. However, the Council did not accept IP4’s assessment of the extent of any mitigation required. The ES submitted with the application concluded that the Development would have “a negligible effect on GP provision” because the GP to patient ratio in the area is well below the Healthy Urban Development Unit (“HUDU”) standard. Furthermore, it is likely that some of those moving to the Development will be existing residents in the area and therefore will already be registered with GPs [S/106]. This conclusion was accepted in the OR and has not been challenged in these proceedings.
- Prior to the AVDC Committee meeting on 25 October 2017, IP4 made no objection to the doctor’s surgery proposal. It raised a concern about temporary provision, which was subsequently resolved in the manner set out in paragraphs 2 and 3 of Schedule 8 of the section 106 agreement. Then, on 30 July 2018, IP4 put forward a request for a cash contribution instead. The cash contribution was proposed to be put towards the fulfilment of “a strategic plan to build one large, “super” surgery” [C/500], comprising a health centre of some 2000sqm to be located on the Site on allocated employment land. An updated proposal was sent to the Council on 19 October 2018. This set out IP4’s view that “individual contributions towards individual health facilities… would run contrary to current health service strategy” [C/507]. IP4’s preferred approach was to pool contributions from a number of different proposal developments to create one facility to serve both the developments and existing populations, ideally on land identified as employment land in the application masterplan.
“health service provider”, nor to the cap on liability of £1.5 million. The terms of the section 106 agreement remained open to discussion until executed and drafts had been published for that purpose. Prior to that time, it could have been amended.
- On 30 April 2019, IP4 wrote to the Council suggesting that the approach taken by the West Kent Clinical Commissioning Group, set out in an attached report, could be adopted. This assumed a financial contribution of £360 per person in any new development. Ms Kitchen, Corporate Planner at the Council, responded in detail to this alternative approach on 5 March 2020 [C/587-588], setting out clear concerns about an absence of clear justification for the approach, and concluding that the “West Kent model does not address the previous concerns raised and the CCG would still be required to provide more evidence that the need for the contribution does arise directly from the development such that they are necessary to render them acceptable.”
- On 10 July 2020, IP4 met Council officers to discuss the strategic case for a single “Hampden Fields Primary Care Facility”. A report by its consultants Turner Townsend in July 2020 set out the forecast patient yield as 2.4 patients per home, totalling 7,200. The Turner Townsend report stated, at paragraph 3.5.1, that a ratio of around 16 patients per sqm for surgery floorspace has been robustly tested nationally. In fact, the floorspace of 600sqm for the GP surgery at the Development has made a more generous allowance of 12 patients per sqm.
- A more detailed written report was provided in November 2020. This set out a high level strategic case for the provision of a large primary care facility in southern Aylesbury, capable of accommodating all the growth identified in the Local Plan, and replacing one of the Westongrove GP practice’s existing three sites. The preferred site was at the Stoke Mandeville Hospital. An “outline business case” and “full business case” [C/676-677] was envisaged, but no follow-up work of this nature, providing any greater clarity about the scheme, such as a site, funding arrangements, or viability, was provided to the Council.
- The Claimant made a lengthy and detailed submission to the Council. However, only five paragraphs were concerned with healthcare. The only issue raised in respect of primary care provision was that the developer was only required to deliver a shell and core building. None of the issues raised in this judicial review claim were raised. Whilst accepting that the Claimant had a sufficient interest to bring this claim, Ms Sheikh QC submitted that the absence of any objections from the Claimant called into question the merits of the claim, as did the fact that IP4 did not bring its own challenge to the Council’s decision, nor did it instruct counsel to represent it at the hearing.
- The OR confirmed that the AVDC Committee had resolved that the decision was delegated for approval, subject to completion of a satisfactory agreement to secure on- site provision of a health centre (GP surgery). It set out the policy framework, including Policy HE 1 of the Weston Turville Neighbourhood Plan which seeks developer contributions to fund improvements to health facilities where the Clinical Commissioning Group has demonstrated that the development will create pressure on service provision and a requirement can be justified.
- The OR advised Members on primary healthcare provision at paragraphs 5.318, 5.319, 5.325:
“Healthcare 5.318 Baseline research as part of the ES established a tendency for GP Practices within proximity of the Application Site to operate patient list sizes notably lower than the relevant standards which would indicate potential spare capacity within the area. However, included within the Proposed Development has the potential to deliver an on- site GP Surgery to meet the needs of the new residents of the Proposed Development. The ES anticipates that the Proposed Development is considered to have a negligible effect on GP provision. The proposals will make provision for a GP surgery which will be secured by way of legal agreement. The socio economics chapter of the ES addendum has been updated to reflect changes in planning policy and provide an update of the cumulative effects. In addition, a Health Impact Assessment (HIA) was undertaken and submitted as a new appendix to the socio-economic chapter. The HIA concludes that the proposals are anticipated to result is a range of positive impacts upon health and well-being within the development and beyond. The proposals provides for additional healthcare facilities through the provision of the GP Surgery, which could include facilities/clinical uses. 5.319 The Aylesbury CCG advise that the current position does not strictly align with the requirements of the CCG in respect of multiple smaller sites across the Aylesbury area, however they are committed to working with the developer to achieve the ambition in the longer term. It is recognised that this is an outline application which makes provision for land and building (shell and core) for a health centre, and the details would be a matter to be considered at the reserved matters stage. The CCG seek to ensure the provision of healthcare facilities (GP surgery provision) are designed in accordance with the NHS established principles. In addition the CCG requested provision be made in the S106 for a financial contribution towards temporary healthcare facilities (earlier in the construction) to support the development in an existing facility (rather than a temporary porta-cabin on site). This can be secured in the S106 agreement. … 5.325 ……On balance, the proposed development provides adequately for healthcare facilities having regards to the CIL regulations and should be afforded neutral weight in the planning balance.”
- In response to representations made by IP4, officers explained in the CR [C/216]: “The S.106 secures the offer of land and building to shell and core standard to the CCG first, and in the event CCG do not require or want the facility offered, it is only after discussion
major limitation and this information is needed so that the impacts of the development alone can be ascertained. So the Section 106 contributions being requested are based on average bill costs rather than an identified capital project cost and other funding availability. And the Section 106 contributions are based on the assumption that the current use and cost of the CCG floor space will be a broad indicator of likely floor space need, so we believe that there’s no quantitative evidence that’s been provided to demonstrate why the existing floor space is unable to accommodate growth needs arising from the development and it’s unclear in terms of how it actually addresses the needs of concealed households. In terms of the proposal before you, the CCG have not taken into account that the proposed development includes a health centre which would be provided on the site and that would exceed the [ 41 9 sqm] requirement that’s set out in their latest submissions and through the Section 106 that would be offered to the CCG as land and building to shell and core standard. So what is on offer is a [600 sqm] building and a site of 0.14 ha. So Section 106 requirements can only secure mitigation that is necessary to make the development acceptable and mitigate its impact. The offer has potential for flexibility to meet the wider strategic vision for delivery of health and care in the future and in addition to the site and core to build offer for the CCG, there is a financial contribution towards a temporary health care facility to increase capacity of an existing health centre if that is required in advance of the health centre itself, the permanent facility, being provided and we believe that this is sufficient for such accommodation and meets the needs of the growing population arising from this site. ….Officers have drawn attention in the corrigenda to paragraph 34 of the NPPF which states that plans should set out contributions expected from development for infrastructure, including health, and the request for such contributions has not been made through the Emerging Local Plan which was first published and consulted back in 2017 and included this proposed allocation.”
- At the meeting, Ms Kitchen advised Members on the lateness of the further representations received from both IP4 and IP3 [C/236]: “The CCG and hospital trust representations have been submitted in a late stage in terms of the application process and whilst …. quite extensive discussions have taken place, the information provided to date is still inadequate to satisfy the Council that CIL tests are met. So Officers have had regard to these submissions as material considerations and given the concerns raised about the justification for this contribution,
further work would have been required by the CCG and the hospital trust and the requested contributions have not been the subject of viability testing either through the VALP process nor through the application process and could potentially affect the viability of the proposed development and its ability to deliver a policy-compliant scheme. Officers have taken a judgment as to whether or not it’s appropriate to delay the consideration of the application for information which may or may not satisfy the CIL tests and at this point it’s not certain whether a CIL-complaint Section 106 methodology may be able to be achieved and this may take several months to work through. So the delay and uncertainty over this matters must be weighed against the potential disruption and potential prejudice to the delivery of an important component part of the …transport strategy for Aylesbury, but it can be seen from the section on the housing land supply that such a delay would also put pressure on housing land supply and create difficulties in relation to the Council’s ability to meet a five-year supply and this would undermine the important objectives in the NPPF which seek to ensure an adequate supply to meet objective needs. And for these reasons it’s considered that the requests are outweighed as a matter of judgment at this stage by the significant delays and prejudice that would result in determining this application if the issues were first required to be resolved, particularly since at this particular moment in time there’s no guarantee that the contributions will be found to be CIL- compliant.”
- Following the Committee resolution, both IP3 and IP4 complained about the manner in which the application and their requests for financial contributions had been handled (letter of 17 March 2021). On 24 June 2021, officers granted the outline planning permission, subject to the conditions set out in the decision notice. In the Delegated Determination report, officers confirmed the advice given orally at the Committee meeting on 24 February 20 21. They considered the representations made in the letter of 17 March 2021 and responded to them.
- Officers concluded that the additional representations made would not be likely to alter the resolution made by Members. It was not considered necessary to refer the matter back to committee as there was no new material consideration which could affect or change the Committee’s resolution. Officers found that the completed section 106 agreement “secures all the measures anticipated and necessary to render this application acceptable in planning terms” [C/361].
- I reject the Claimant’s submission that the Court should not have regard to the delegated decision and Delegated Determination report. It was an integral part of the Council’s decision-making process. It was the final stage, at which the decision to grant outline planning permission was made. It was especially relevant since both IP3 and IP4 made
impact of this Development, in order to facilitate IP4’s preferred strategy for future primary care provision in larger health centres. Particularly in circumstances where the size of the contribution sought was over £2 million and there were no firm plans as to how, when and where the proposed scheme would be implemented.
- In conclusion, although I grant permission on Ground 1, Ground 1 does not succeed for the reasons set out above. Ground 2
- Under Ground 2, the Claimant submitted that the advice given by officers as to the provision that would be secured by the section 10 6 agreement was significantly misleading and led members to take into account irrelevant considerations.
- The main focus of the challenge under Ground 2 was the advice given by officers regarding the section 106 agreement, in the CR, at [C/ 216 ]: “The S106 secures the offer of land and building to shell and core standard to the CCG first, and in the event CCG do not require or do not want the facility offered, it is only after further discussions with the CCG that the site would be offered on the open market.”
- In my view, the existence of the financial cap did not render the offer insecure. A financial cap of £1.5 million was unobjectionable in principle, as an open-ended and uncapped obligation would in all likelihood be overly risky for a developer and would be difficult to justify in terms of the test in regulation 122 of the 2010 Regulations. The amount of the cap was based upon build costs put forward by IP4 for the 600sqm of primary care floorspace.
- The Claimant criticised the officer for advising that the land and building would be offered to “the CCG first”, whereas the planning obligation requires the land to be marketed to “relevant health providers”. The officer’s statement must be seen in the context of health service procurement. IP4 has no responsibility for providing healthcare services and is unable to purchase or lease its own assets. Rather, IP contracts (“commissions”) primary care services from providers (such as partnerships of GPs) who own and construct their own facilities using private funding (as explained by IP3 at [C/521], [C/531], [C/546]). The planning obligation requires the land in question to be marketed to relevant health providers (i.e. primary care bodies from whom IP4 could commission services) through a marketing strategy and for the developer to provide written evidence of the marketing exercise to the Council on a bi- annual basis. The term “relevant health providers” does not exclude the private sector because, in law, GP partnerships are private bodies, even though they provide NHS services. Mr Parker suggested that the unit might be let to a health provider which did not provide primary care services but the grant of outline planning permission is for “a doctor’s surgery” and it was plainly envisaged by all concerned, including IP4, that it would be a GP’s surgery.
- I accept the Council’s submission that it is clear that the planning obligation does in fact build IP4 into the marketing and sale process, so that it was not misleading of
officers to say that, “in the event [IP4] do not require or do not want the facility offered, it is only after further discussions with the [IP4] that the site would be offered on the open market.” Where the developer has failed to enter into a transfer or lease of the Health Centre Land within the requisite period, paragraph 6.2 of Schedule 8 clearly requires the developer, prior to putting the land on the open market, that it agree in writing “an alternative mechanism to provide the Health Centre to mitigate the impacts of the Development”. Liaison with IP4 is therefore built into the process, and the planning obligation allows the IP4 to take a broad view about alternative ways of meeting primary care needs in the event that a provider of primary care does not wish to take on the site.
- In my judgment, these criticisms were forensic rather than genuine. I do not consider that the officer’s advice to Members was wrong or alternatively seriously misleading.
- The Claimant also referred to the suggestion by officers (at C/216 and C/235) that there was “flexibility” within the section 106 agreement for further discussions to take place with IP4 to meet its needs at a later stage. However, the Claimant submitted that the section 106 agreement did not include any such provision.
- Ms Kitchen, in her oral advice to Members [C/258- 259 ], explained that the provision in the section 106 agreement was to secure the health centre to meet the needs of this Development, and went on to say: “…we are aware that there may well be flexibility on the site in order to expand that facility if in the future the CCG are looking to have a larger facility to meet the needs of the wider population other than just Hampden Fields and so the provision in the Section 106 allows ….further discussions to take place if the CCG decide that they want to have further discussions about what that provision would entail…”
- I am satisfied that it was accurate for Ms Kitchen to say that officers and IP 2 envisaged that, over the course of the time it would take for this application to reach reserved matters stage, it might well be possible to negotiate and agree with IP4 to provide land at the Site which would accommodate a large health centre, serving the wider population in the area. There was suitable land available. A further development of this kind would not require a further application for planning permission, but it would require either an amendment to the section 106 agreement or a new agreement. The section 10 6 agreement as drafted at the time of the decision did not make provision for possible discussions for this purpose. To that extent, the advice Ms Kitchen gave was incorrect. However, I do not consider that the error was significantly or seriously misleading in a material way, since whether or not any further discussions about a larger health centre were provided for in the section 106 agreement was not likely to influence Members in deciding how to proceed in determining the decisions that they had to make at the meeting.
- In conclusion, although I grant permission on Ground 2, Ground 2 does not succeed for the reasons set out above.
