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S106 agreements and contributions to healthcare services

The High Court recently dismissed a legal challenge to a council’s approach to requests for cash contributions to healthcare services. Saira Kabir Sheikh QC and Michael Brendan Brett analyse the ruling.

The High Court has handed down judgment in R (HFAG Ltd) v Buckinghamshire Council [2022] EWHC 523 (Admin) dismissing a challenge brought by a local interest group to the grant of planning permission for a major development south of Aylesbury, known as Hampden Fields. The development, which will provide up to 3,000 homes and a local centre including a doctors’ surgery, forms a key part of the Aylesbury Garden Town masterplan. It also secures a southern ‘link road’ for the town, central to the Transport Strategy.

The challenge centred on criticisms of the council’s approach to requests made by the local clinical commissioning group and hospital trust for significant cash contributions from the developer to be secured under section 106 agreements, and advice given by officers about the doctors’ surgery provision on the site. 

Applying the well-known dicta in Mansell v Tonbridge and Malling relating to criticisms of officers’ reports and South Buckinghamshire and Porter relating to reasons challenges, Mrs Justice Lang dismissed the challenge after a rolled-up hearing on 23 and 24 February.

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This is the first time that the Court has ruled on a challenge to the exercise of a local planning authority’s planning judgement as to whether to require cash contributions from developers towards healthcare services and/or infrastructure. NHS bodies are increasingly seeking to obtain funding through section 106 contributions. This judgment reinforces that the courts will not easily be persuaded to interfere in local planning authorities’ highly fact- and case-sensitive determination as to whether such requests meet the three-part test in regulation 122 of the Community Infrastructure Levy Regulations 2010.

Saira Kabir Sheikh QC and Michael Brendan Brett are barristers at Francis Taylor Building. They acted for the Defendant, Buckinghamshire Council, instructed by Legal and Democratic Services, Buckinghamshire Council. Morag Ellis QC, also of Francis Taylor Building, acted for the Second Interested Party, Taylor Wimpey instructed by Mills and Reeves.

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