NHS Trust seeking £1.8m in contributions over 2,200 home development fails in High Court challenge

The High Court has refused an NHS trust permission for a judicial review challenge over a decision by three local councils to reject its request for developer contributions towards healthcare service provision before approving a 2,200-dwelling development.

The planning application in question straddled the areas of Worcester City Council, Malvern Hills District Council and Wychavon District Council, with Worcester and Wychavon agreeing to delegate its determination to Malvern in late 2021.

Worcestershire Acute Hospitals NHS Trust submitted a request for £1.8m in financial contributions to cover the increased strain that the development would place on the Trust's services.

But the council refused the request, stating that the planning application had been subject to a detailed investigation with respect to viability. This prompted the Trust to pursue its legal challenge.

In a rolled-up hearing in R (Worcestershire Acute Hospitals NHS Trust) v Malvern Hills DC and Ors [2023] EWHC 1995 (Admin), Mr Justice Holgate considered the following grounds of argument:

1. The councils failed to take into account or investigate an obviously material consideration, namely the effects on the provision of other infrastructure and facilities under s.106 if the Trust's request were to be met.
2. In breach of s.100D of the Local Government Act 1972, Malvern Hills failed to make open to inspection by members of the public the viability assessment referred to in the officers' reports, thereby denying the Trust the opportunity of engaging with the principal reason given by the councils for rejecting its request, namely that it would affect the viability of the scheme and so result in a reduction in the provision of other infrastructure judged by the defendants to be critical.
3. The councils failed to give lawfully adequate reasons as to why the contribution requested by the Trust did not comply with reg.122(2) of the CIL Regulations 2010.
4. The councils took into account an irrelevant consideration as a determinative factor when applying reg.122(2) of the CIL Regulations 2010, namely that there would be no funding gap if the Trust were to switch to a payment by results method.
5. The councils failed to give adequate reasons for departing from certain planning appeal decisions.
6. There was no evidential basis for the suggestion in the officers' report for the committee meeting held on 3 November 2021 that some new health infrastructure would be secured.

Ground 5 was abandoned by the claimant before the hearing.

The judge found grounds 1, 2, 3, 4, and 6 unarguable and refused permission for the judicial review application.

Adam Carey