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On appeal from: [2016] CSIH 28

This case considered the correct legal test for the validity of planning obligations, the extent to which planning authorities are obligated to comply with national policy when formulating their own supplementary guidance, and the extent of the supervisory jurisdiction of the courts when considering challenges to planning policies.

The Supreme Court unanimously dismissed the appeal. The Court stated that a planning obligation may be entered into in circumstances which are not connected with any planning application, but that it is not lawful to restrict the commencement of development by planning obligation until the developer undertakes to make a financial contribution towards infrastructure which is unconnected with the development of the site. In considered that, in determining a planning application, the authority must take into consideration material provisions of the development plan and other material considerations and that, for a planning obligation to be material, it must have some connection with the proposed development which is not trivial. As such the Supreme Court concluded that, in the instant case the scheme in the supplementary guidance which involved the pooling of payments which were not tied to a particular development was unlawful as the opt-out did not make the scheme voluntary in any real sense. This is unlawful because the planning obligation was not imposed for a purpose related to the development and use of the burdened site, and the planning obligation entered into by the respondent was an irrelevant consideration in terms of a planning application because there was only a trivial connection between the development and the infrastructure intervention(s) which the proposed contribution would fund.

For judgment, please download: [2017] UKSC 66
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (13 Jun 2017 morning session) (13 Jun 2017 afternoon session)