Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited [2017] UKSC 66
The point in plain English: A planning authority cannot use a planning obligation to collect money for infrastructure that has no more than a trivial connection with the development simply because the contribution scheme appears in planning policy.
What the Supreme Court decided
The case concerned a Scottish strategic transport fund. Developers in growth areas were expected to contribute fixed sums towards a pooled package of transport projects, even where an individual development had little or no meaningful impact on some of those projects.
The Supreme Court dismissed the planning authority’s appeal. The scheme was unlawful because the proposed obligations could fund infrastructure with only a trivial connection to the development and, on the facts, the obligation entered into by Elsick did not itself restrict or regulate development of the burdened land in the way section 75 of the Town and Country Planning (Scotland) Act 1997 required.
Why it matters in England
Elsick is a Scottish planning case, so it should not be treated as a substitute for the English statutory rules on section 106 agreements. It is nevertheless useful in England because the Supreme Court expressly considered the closely related English authorities, including Tesco Stores Ltd v Secretary of State for the Environment [1995] UKHL 22, and stressed the distinction between the legal validity of an obligation and whether the benefit offered by it is a material consideration in a planning decision.
See Planning Geek’s guide to section 106 agreements and our explanation of material considerations.
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