Permission had been granted for the development subject to a legal agreement requiring payments towards highway infrastructure and services in three instalments. The company sold its interest in the site but paid the first instalment and agreed to make the two additional payments should these be enforceable.
As part of the sale, the company also agreed to submit a second identical application but without offering any section 106 agreement. At appeal, an inspector determined that the scheme's net additional impact did not justify any financial contributions and the second permission was implemented to cover the balance of the development. The company claimed that no further payments were required.
Mr Justice Hickinbottom noted that where two planning permissions cover the same land, it is a matter for the developer to choose between them. Despite the initial payment, he considered that the new owners were entitled to complete the development under the terms of the second permission. On that basis, he concluded that there was no obligation on the company to make any further financial payments and it was therefore entitled to be relieved of its obligations under the section 106 agreement.
Robert Hitchins Ltd v Worcestershire County Council;
Date: 18 November 2014
Ref:  EWHC 3809 (Admin)