R (Millgate Developments Ltd) v Wokingham Borough Council [2011] EWHC 6 (Admin)
The point in plain English: A section 106 undertaking does not cease to be enforceable simply because a Planning Inspector later says the obligation was unnecessary when deciding the planning appeal. The obligation and the planning merits are separate questions.
What happened
Millgate offered unilateral undertakings towards highways, education, leisure and library provision while appealing against refusal of planning permission for 14 homes. The Inspector allowed the planning appeal but said the council had not shown the contributions were necessary and therefore gave the undertakings little weight.
After development commenced, the council nevertheless sought payment under the undertaking. Millgate challenged that decision.
What the High Court decided
HHJ David Pearl dismissed the claim. The undertaking had been entered into voluntarily and its own trigger events had occurred. Nothing in it made enforceability depend on the Inspector deciding that the contributions were necessary to grant permission.
The court also accepted that the council could use its incidental powers under section 111 of the Local Government Act 1972 to refund any surplus after the relevant expenditure had been made.
Why Millgate matters
The case is a reminder that the wording of a section 106 agreement or unilateral undertaking matters enormously. An obligation may remain binding even where it was not needed to tip the planning balance, unless it is modified, discharged or otherwise released through a lawful route.
Planning Geek explains section 106 agreements and modifying or discharging older obligations.
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