The High Court examines student accommodation policy

There is no requirement for a developer to have in place a binding contractual arrangement with a student accommodation provider in London in order for a purpose-built student accommodation (“PBSA”) application to comply with the need to “secure” such provision in Lewisham’s local plan and London Plan policy on PBSA. Nor did a student housing Nominations Agreement, the usual vehicle for PBSA development, with a higher education provider (“HEP”) need to be contained within a s. 106 Agreement before permission could be granted lawfully by the planning committee to accord with the applicable policy. So held the court in R(Thomas) v Lewisham LBC [2026] EWHC 1840 (Admin) in an important judgment handed down on 21 July 2026. The case raised significant issues of principle concerning the interaction of planning policy, its interpretation and the operation of s. 106 Agreements.

The claim was brought by a Lewisham local resident concerned at the proposed PBSA redevelopment of Scott House, a large Victorian building on Grove Street in Lewisham, promoted by Tribe Scott House Limited (Tribe). The Claimant was involved with a local action group, formed to oppose the development, Save Scott House. The claim was brought on two grounds. The first ground impugned the local planning authority’s assessment of the compliance of the application with PBSA policy and the statutory requirements of the Community Infrastructure Levy Regulations 2010 and s. 38(6) of the Planning and Compulsory Purchase Act 2004. The second ground challenged the s.106 Agreement’s provisions in respect of assisting residents with relocation. Both grounds were dismissed but Ground 1 is of most wide interest to planners and, in particular, the proper approach to PBSA applications in London and, where similar policy wording applies, across the country.

Policy HO7 of the newly adopted local plan provides materially that “A. Development proposals for… PBSA will be supported where they robustly demonstrate through evidence that: […] b. The accommodation is secured for use by students, as demonstrated by an agreement with one or more specific higher education provider(s)…” The supporting text to the policy makes clear that the purpose is to “guard against speculative development and ensure proposals genuinely help to address identified need” and cross-refers to the London Plan. Policy H15 of the London Plan provides materially that “Boroughs should seek to ensure that local and strategic need for purpose built student accommodation is addressed, provided that: […] 2) the use of the accommodation is secured for students.” The supporting text to that policy explains that “the borough should ensure, through condition or legal agreement, that the development will, from the point of occupation, maintain a nomination agreement or enter a new nomination agreement with one or more higher education provider(s) for a majority of the bedrooms in the development, for as long as it is used as student accommodation.”

The Claimant argued that the Policy H07 requirement to secure the PBSA for students must be met by a binding contractual arrangement with a HEP to be entered into before planning permission could be granted in order for an application to attract the full weight of policy support. The Defendant, Lewisham Council, and Tribe submitted that Tribe’s engagement with HEP, Trinity Laban, as evidenced by a letter of support coupled with the provisions contained in the s. 106 Agreement, which provided for a staged process incorporating a Nominations Agreement prior to occupation and default provisions, was sufficient for compliance with Policy HO7 and the London Plan.

Timothy Corner KC (sitting as a Deputy Judge of the High Court) agreed with Lewisham and Tribe. The Judge held that the policy did not require a binding contractual arrangement to be in place prior to permission being granted. Firstly, the PBSA was “secured” within the meaning of the policy by the nature of the permission, which is for PBSA and condition 3 of which further requires accordance with 502 PBSA bedspaces. Secondly, the policy wording requiring an agreement with an HEP was silent as to timing. Thirdly, the supporting text to Policy HO7 indicated that the policy was to be consistent with London Plan PBSA policy which does not require a binding contractual agreement before permission is granted. Finally, the policy required evidence of engagement with an HEP, as suggested in the London Plan Guidance (LPG), and evidenced in this case by Tribe’s letter from the HEP.

The Judgment makes practical sense. As the London Plan Guidance advises, “HEPs are unlikely to enter into such agreements until plans and, indeed, construction are sufficiently advanced that they can rely on bed spaces being available when needed (e.g. for the start of a particular academic year).” With the LPG and the Council and Tribe’s evidence firmly in mind, the Judge emphasised that “it is simply impractical to expect HEPs to enter into a binding contract – in any form – until after permission has been granted” (para [94]). The case therefore represents a welcome recognition by the court of the market realities for the successful delivery of PBSA in London.

This article was first published in the 39 Essex Chambers Planning, Environment and Property Newsletter and was written by Daniel Stedman Jones, one of the contributing barristers. Together with Thomas Hill KC, Daniel acted for Tribe.