Council wins court battle over unilateral s. 106 agreement and off street parking

It said that an offer by a Westminster resident to give a unilateral undertaking as a planning condition was not a relevant consideration for a planning inspector.

The case of Westminster City Council v Secretary of State for Communities and Local Government & Anor [2013] EWHC 690 (Admin) turned on the resident wanting to make the conversion even though Westminster City Council’s policy is to protect off-street car parking.

He offered a unilateral undertaking not to apply for or hold a parking permit. A planning inspector accepted this when hearing an appeal against Westminster’s refusal of planning permission.

Rebecca Clutten, of barristers Francis Taylor Building, represented the council and argued that the undertaking fell outside the scope of section 106 of the Town and Country Planning Act 1990 and that the inspector had therefore taken into account an irrelevant consideration when granting permission for the works.

This was accepted by Belinda Bucknell QC, sitting as a deputy High Court judge, who also held that the inspector had failed to give reasons for being satisfied that the 'exceptional circumstances' test contained in the council’s policy had been met.

The council in 2011 refused permission to merge the garage with adjacent living accommodation, noting this “would result in the loss of protected off-street residential parking and add to an already high demand for on-street parking in the area and this would affect people already living in the area”.

Property owner Ignazio Vok then offered an undertaking “not to apply to the council for a parking permit in respect of the land nor to knowingly permit any owner or occupier of the land to apply to the council for a parking permit”. The inspector granted planning permission later that year.

Judge Bucknell said Mr Vok’s unilateral undertaking did not meet the act’s requirements because “it does not have the characteristics required for a planning obligation”.

It was not enforceable as required but was “purely personal undertaking by Mr Vok which does not run with the land [and] is not capable of being registered as a local land charge”.

The judge said: “It follows from the foregoing that since the Inspector wrongly took the unilateral undertaking into account as a section 106 planning obligation, as a factor which went some way towards mitigating the loss of the off-street parking place and thus as a reason for allowing the appeal, his decision must be quashed on this ground alone.”