NHS trusts and section 106 contributions

The High Court has dismissed a claim by an NHS Trust against the grant of planning permission. Saira Kabir Sheikh KC explains why.

The Court recently dismissed a claim by the Worcestershire Acute Hospitals NHS Trust against the decision of the Malvern Hills, Wychavon and Worcester Councils to grant planning permission to Welbeck Strategic Land LLP for a significant mixed-use development of up to 2,204 dwellings including affordable housing, hotel, school, employment land, health facility and other development.

In Worcestershire Acute Hospitals NHS Trust, R (On the Application Of) v Malvern Hills District Council & Ors [2023] EWHC 1995 (Admin) the Trust sought to challenge the decision on five separate grounds which were all geared towards a contention that Welbeck should have been required by the councils to make a section 106 contribution towards acute health care services.

The grounds in summary related to allegations of a lack of reasons for rejecting the Trust’s request, inaccurate advice to members regarding the section 106 contributions that had been agreed, a failure to re-open the viability evidence and a failure to have complied with section 100D of the Local Government Act 1972 in respect of making the viability assessments available for disclosure to the public and the Trust in particular.
 
All these grounds were deemed unarguable. The discussion in respect of section 100D is of interest in that the Court accepted that the information had been properly withheld and contrasted the situation from the decision in Holborn Studios v Hackney LB [2021] JPL 17  preferring to rely on (Perry) v London Borough of Hackney [2015] JPL 454.
 
The judgment is of further interest in that it emphasises again that the Trust nor indeed any other party is entitled to contributions unless (a) they have been properly justified pursuant to the Community Infrastructure Levy Regulations and (b) having regard to overall viability and other planning imperatives the decision maker considers that they should be required when undertaking the planning balance.  
 
Saira Kabir Sheikh KC is a barrister at Francis Taylor Building. She acted on behalf of Welbeck Strategic Land LPP instructed by Osborne Clarke UK.