Judge rejects challenge to 239-home scheme in Oxford over lack of transport improvement works obligations

The High Court has dismissed a challenge to planning permission for 239 homes in Oxford despite the city council’s failure to secure delivery of necessary transport improvement works and publish the draft s106 agreement.

Local resident Peyton Davis brought the case against Oxford City Council over two housing schemes in Marston. 

Both were subject to s106 obligations for contributions to Oxfordshire County Council and which prevented this money being used for any other purpose.

Commenting on the case, Isabella Tafur, of Francis Taylor Building chambers, who acted for Oxford, said the s106 agreement did not impose any obligation on Oxfordshire to carry out the improvement works.

Dr Davis alleged Oxford gave planning permission in the mistaken belief that the transport works would be secured in the s106 obligation.

The first challenge was that the city council failed to secure the delivery of necessary transport improvement works and so took account of an immaterial consideration or acted irrationally in assuming that the s.06 obligation would deliver improvements that were not secured.

A second challenge was that Oxford failed to publish the draft s106 obligations prior to giving planning permission, in breach of article 40(3)(b) of the Development Management Procedure Order.

In Davis, R (On the Application Of) v Oxford City Council [2023] EWHC 1737 (Admin) Mr Justice Julian Knowles rejected both grounds having concluded that read fairly the officer’s reports did not suggest delivery of the works by Oxfordshire would be secured within any particular timeframe, or at all.

He also noted the planning committee had delegated authority to officers to amend the heads of terms and so did not grant permission on the basis that the delivery of those works would be secured.

Ms Tafur said: “The court recognised that [Dr Davis’s] challenge raised an important point of principle, namely whether local planning authorities are entitled to take account of contributions towards infrastructure improvements without actually securing the delivery of those improvement.

“It held that for contributions to amount to material considerations, it was not necessary to secure both the payment of the contribution and the delivery of the relevant works.”

Julian Knowles J also found Oxford had substantively complied with the requirements of the DMPO by publishing the s106 heads of terms in the officer’s report, and that Dr Davis had suffered no prejudice.

Mark Smulian