Robert Hitchins Ltd, R (on the application of) v Worcestershire County Council & Anor

Robert Hitchins Ltd, R (on the application of) v Worcestershire County Council & Anor

Where two materially identical planning permissions exist, a developer may objectively elect to continue development under the later permission, thereby avoiding further obligations under the earlier section 106 agreement. The Unilateral Undertaking evidenced this election, and subsequent operations were lawfully carried out under the Second Planning Permission.

Parties
Claimant / Respondent: Robert Hitchins Limited; Defendant / Appellant: Worcestershire County Council; Interested Party: Worcester City Council
Jurisdiction
England and Wales
Judgment Date
27 October 2015
Procedural Posture
Judicial Review / Appeal From High Court Judgment
Outcome
Appeal dismissed
Legal Topics
Section 106 Agreements, Planning Permissions, Interpretation of Undertakings, Election Between Permissions
Planning Law Contract Law Administrative Law Section 106 Agreements Planning Permissions Interpretation of Undertakings Election Between Permissions

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Parties

Robert Hitchins Limited

Claimant / Respondent

Worcestershire County Council

Defendant / Appellant

Worcester City Council

Interested Party

Procedural Posture

Judicial Review / Appeal From High Court Judgment

Legal Issues

  1. 1 Whether a developer can elect to continue development under a second planning permission to avoid further obligations under a prior section 106 agreement
  2. 2 Interpretation of 'implementation' in the context of planning undertakings
  3. 3 Lawfulness of building operations under the second planning permission

Ratio Decidendi

Where two materially identical planning permissions exist, a developer may objectively elect to continue development under the later permission, thereby avoiding further obligations under the earlier section 106 agreement. The Unilateral Undertaking evidenced this election, and subsequent operations were lawfully carried out under the Second Planning Permission.

Court Disposition

Appeal dismissed

Orders

  • Declaratory order confirming no further instalments of the transport contribution under the First Section 106 Agreement are payable if development continues under the Second Planning Permission