Section 288 Challenges - Is there scope to think outside the box?
Author: Kathryn Jump
Applies to: England and Wales
For a number of years, the Government has sought to narrow the scope and use of planning obligations. It has actively encouraged local authorities to adopt the Community Infrastructure Levy (CIL) when it introduced the CIL Regulations in 2010.
One way in which the Government has achieved this is through regulation 122 of the CIL Regulations. Regulation 122 sets out that all Section 106 obligations can only form a material consideration in determining planning applications if the obligations are necessary to make the development acceptable in planning terms, directly relate to the development and are fairly and reasonably in scale and kind to the development.
During Section 78 appeals, it is now common practice to enshrine this test in the drafting of Section 106 obligations, to ensure that provisions offered by applicants fall away if the Secretary of State or the Inspector finds they do not meet the Regulation 122 requirements.
Regulation 122 was introduced to aid the delivery of development, but developers and landowners need to be aware that it can also put planning permissions granted on appeal at risk.
The recent Section 288 challenge brought by South Warwickshire NHS to the grant on appeal of permission for a residential development in Shipston, on the basis that their requested health contribution was judged by the Inspector not to be Regulation 122 compliant provides food for thought for developers and landowners. A Section 288 can result in the quashing of the planning permission you have fought long and hard for through the planning process. Even if the permission isn't quashed the delay and uncertainty caused by the challenge will put the brakes on any attempts to market and sell the site.
So what can developers and landowners do to limit the impact of a Section 288 challenge?
The starting point has to be the welcome introduction in October 2015 of a permission stage in the Section 288 process. Like judicial review, those seeking to challenge decisions made on appeal will now have to show to the Court that they have an arguable case before the challenge can proceed. Developers and landowners, with the benefit of the planning permission, have the opportunity to submit representations to the Court at the permission stage and taking an early pro-active approach will maximise the prospects of the challenge being knocked-out at this stage.
If permission is granted developers and landowners have a number of other options to bring matters to a head, without having to wait for a full hearing. Thought should be given as to whether a new Section 106 obligation can be offered - such an obligation would not fall-foul of the regulation 122 as this would be a free-standing obligation not linked to the determination of the planning permission. If a new Section 106 obligation can remedy the complaint being brought then the claimant risks losing and an award of costs, if they continue with the challenge. They also risk the Secretary of State or an interested party applying to the Court to have the challenge struck out at an early stage.
Consideration should also be given as to whether a declaration, rather than a quashing, is the most appropriate remedy in the circumstances of the case, with the obvious benefit to the developer that their planning permission remains intact even if the Court declares in the claimant's favour (see further the High Court decision in Wiltshire Council v Secretary of State for Communities and Local Government  EWHC 1459 (Admin).
The introduction of the permission stage, and the High Court's recent use of declarations as an alternative remedy to the quashing of planning permissions, provide developers and landowners with more scope than ever to take a pro-active role in defending their consents and ensuring an expedited resolution of a Section 288 challenge.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.