Robert Hitchins: switching permission and section 106
R (Robert Hitchins Limited) v Worcestershire County Council [2015] EWCA Civ 1060 concerns two planning permissions authorising identical physical development, but with different transport-contribution obligations.
The Court of Appeal upheld the finding that the developer had switched to the second permission before later instalments became payable. It did not cancel the original agreement or erase a payment which had already fallen due.
Important legal note: Planning Geek is a planning consultancy, not a law firm. This page provides general planning information and is not legal advice. Case law must be read in its factual and legal context and may be affected by later judgments, legislation or policy. Where the original judgment is available, it remains the authoritative source. If the outcome matters to a live case or dispute, take advice from an appropriately qualified planning solicitor or barrister.
Copyright and licensing: Crown copyright and other rights in judgments and source material remain with the relevant rights holders. Where a judgment is reproduced from Find Case Law, it is used under the Open Justice Licence and the source should be acknowledged. Material obtained from other sources is reproduced only where the applicable terms permit it. Planning Geek does not claim copyright in the text of court judgments.
- Neutral citation
- [2015] EWCA Civ 1060
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 27th October 2015
- Judge
- Richards LJ, Floyd LJ and Sales LJ
- Case number
- C1/2014/3992
Need help with a planning application?
Planning Geek isn’t just a reference site - preparing and submitting planning applications is what we do. If you’d like a hand with an application, an appeal or any other planning matter, we’d be glad to help.
Two permissions, but different payment consequences
The first permission for housing in Worcester was accompanied by an agreement requiring a transport contribution in three instalments. The first was triggered by commencement, with the others linked to occupation thresholds.
The developer began under that permission and the first instalment was paid. A second permission was then granted on appeal without the transport contribution, the inspector having concluded that the requested contribution failed the applicable regulation 122 tests.
A further undertaking recorded that, once the second permission’s reserved-matters approval became effective for this purpose, development would continue under that permission. This happened before the later occupation thresholds were reached.
Objective evidence established the switch
Because the authorised physical development was identical, looking at the building works alone would not reveal which permission was being relied upon.
The undertaking, read objectively in its documentary and commercial context, supplied the evidence. The word implementation was not confined to the first act of commencing development: here it concerned continuing to carry it out.
The Court of Appeal rejected the council’s challenge to that interpretation and the resulting factual finding. It also rejected the argument that partially completed buildings prevented the switch between these consistent permissions.
The original agreement was not set aside
The developer accepted the validity of the first agreement. Its first payment obligation had been triggered and remained payable.
The successful argument concerned whether the second and third triggers ever arose under that agreement, once further development was being carried out under the alternative permission.
That is different from saying that a later permission automatically discharges all section 106 obligations. The agreement’s wording, the relevant triggers and what the developer actually did were central.
Identical permissions are not incompatible schemes
The court distinguished the difficulties arising where work under one permission makes another scheme impossible to carry out in accordance with its terms.
Read Pilkington and the later Supreme Court decision in Hillside for that separate issue. Robert Hitchins is not permission to combine incompatible parts of different schemes.
The practical exercise is to read both permissions and agreements, identify any liabilities already accrued, and establish clear evidence of the basis on which further development proceeds.
Read Robert Hitchins
The complete Court of Appeal judgment is available to Gold Members.
Robert Hitchins Case Law Page Updated: 12th September 2026