Medway 12 flats appeal fails without Section 106

The Medway 12 flats appeal has been dismissed because the applicant failed to secure necessary Section 106 contributions, leaving the Inspector unable to grant outline permission for redevelopment of a former military site.

Inspector Timothy King issued his decision on 9th October 2026 concerning land between Cumberland Road and Medway Road in Gillingham. The proposed development involved 12 apartments with parking, landscaping and access from Medway Road.

Although the case raised questions about Grade II listed wartime anti-tank defences, trees and ecology, the Inspector did not decide those planning merits. Missing obligations were sufficient to defeat the scheme before he reached them.

Medway 12 flats appeal: what was proposed?

Application MC/25/0754 sought outline planning permission for 12 residential units on vacant previously developed land formerly associated with Ministry of Defence barracks. The appeal followed a refusal by Medway Council and was determined under Section 78 of the Town and Country Planning Act 1990.

All matters were reserved except access. In principle, this meant detailed proposals for such elements as layout, scale and appearance could be assessed subsequently through reserved matters applications, but the access arrangement formed part of the outline decision.

The site lies close to the Chatham Lines and a listed group of Second World War anti-tank obstacles beside Medway Road. Inspector King identified their preservation, particularly the proposed access, among the main issues that would ordinarily require assessment.

He also identified the effects of the proposal on character, existing trees and ecology. None of those potential impacts ultimately became the determining reason for dismissing the appeal.

Why Section 106 became decisive

The Council sought standard contributions for a 12-home scheme under its Developer Contributions Guide. Separately, Natural England had advised that new housing within six kilometres of the North Kent Marshes Special Protection Area and Ramsar sites could increase recreational disturbance to protected bird habitats.

The Inspector recorded a mitigation contribution of £337.49 for each dwelling within the relevant zone, including this site. This was part of the environmental and infrastructure obligations to be secured rather than an optional enhancement to the scheme.

Under regulation 122 of the Community Infrastructure Levy Regulations 2010, a planning obligation may support a grant of permission only where it is necessary, directly related to the development and fairly and reasonably related in scale and kind. The Inspector expressly found that the measures sought met those tests.

Yet the appellant had neither entered negotiations with Medway Council for a Section 106 agreement nor submitted a unilateral undertaking. He had also made no representations to explain why the obligations should not apply.

Inspector King was clear that there was no mechanism securing the required mitigation. He explained that “even were I to find in favour of the appellant” on the identified planning issues, he could not allow the appeal without binding obligations. No conclusion was reached on the remaining heritage, tree or ecological merits.

Why reserved matters could not rescue the case

The decision emphasises a procedural trap in outline applications. Matters such as appearance or landscaping may remain reserved, but an obligation necessary to make the development acceptable cannot simply be assumed to follow in a later reserved matters decision.

As the Inspector explained, the required legal obligations had to be finalised at the outline stage. He therefore regarded the application as incomplete for the purposes of granting permission and dismissed the appeal without undertaking a full analysis of its remaining merits.

This does not mean every residential development needs an identical Section 106 agreement. Contributions must be properly justified and meet the statutory tests. But where those tests are met and the decision-maker needs a binding mitigation mechanism, leaving the obligation unsigned creates a fundamental obstacle.

Developers should engage on the content and amount of contributions well before the decision deadline. A unilateral undertaking can sometimes provide a route where agreement with the authority remains elusive, but it still must be capable of securing the necessary obligations and be legally effective.

The listed anti-tank defences beside Medway Road

The heritage context is unusually striking. Historic England records the Group of Anti-tank Pimples, Medway Road as Grade II listed, list entry 1392428, designated on 28th February 2008.

The concrete barriers are a surviving line of Second World War anti-invasion defences associated with Chatham’s military landscape. Historic England describes a line approximately 85 metres long, with the obstacles arranged up to five deep in places.

The obstacles were intended to impede armoured vehicles approaching the dockyard and barracks. Their historic association with the reused Chatham Lines and the nearby Nore Command Bunker contributes to their special interest.

Because access was the only matter not reserved in the appeal, the relationship between proposed vehicular movements, access works and the listed barriers would have been directly relevant. However, the Inspector did not reach a conclusion about harm or preservation. Planning Geek’s guide to the setting of a heritage asset explains how such relationships are assessed when heritage merits do arise.

A headline claiming that the flats were refused because they threatened wartime defences would therefore be misleading. The barriers were a potential substantive issue, not the ground on which the appeal was decided.

What the decision means for planning applicants

First, identify likely mitigation requirements at pre-application stage. Ecological zones of influence, adopted contribution policies, education needs and other relevant infrastructure matters should be assessed alongside the scheme’s layout and viability.

Second, establish the legal mechanism before the application reaches decision or appeal. Submitting a planning statement that promises later payment is not the same as providing an enforceable Section 106 agreement or acceptable unilateral undertaking.

Third, distinguish planning merits that can be reserved from matters which must be secured when outline permission is granted. This is especially important where a site falls within a protected habitat’s recreational impact zone.

Fourth, obtain clear heritage evidence wherever construction or access works could affect listed structures. Their unusual form or modest physical size does not reduce the significance of statutory designation.

Planning Geek explains the legal mechanisms in its guides to Section 106 agreements and unilateral undertakings. In this appeal, neither mechanism had been completed, despite the identified need for mitigation.

The decision and its limits

Appeal 6009269 was decided on 9th October 2026 by Inspector Timothy King following Medway application MC/25/0754. The Planning Inspectorate case record and full appeal decision via Appealbase identify the dismissal and its grounds.

The Government’s planning obligations guidance and appeal good-practice advice explain the necessary, directly related and proportionate tests for Section 106 obligations.

The Medway 12 flats appeal illustrates a decisive procedural point: where necessary mitigation is not secured by the decision stage, even a potentially acceptable scheme can fail without its other planning merits being determined.