Developer contributions need circular compliance

A planning authority adopted a strategic development plan which included supplementary planning guidance (SPG) aimed at securing developer contributions to transport infrastructure for the area covered by the plan. The mechanism was to seek payment into a strategic development fund based on the size of planning permissions granted, in order to defray costs projected to be £86.6m up to the year 2023. An objection to the SPG was upheld by the reporter who considered the strategic development plan, on the basis that contributions were not directly related to the development in question, contrary to the requirements of Circular 3/2012 on planning obligations. The planning authority nonetheless approved the SPG.

In court (Elsick Development Co Ltd v Aberdeen City and Shire Strategic Development Planning Authority [2016] CSIH 28) it was argued that the contributions sought in terms of the SPG were to be part of a pooled resource and were not therefore directly related to the proposed development, of a scale and kind appropriate to the development and in all other respects reasonable, contrary to the terms of the circular.

Those submissions were upheld on the first two grounds argued, demonstrating that although circulars are themselves guidance, failure to adhere to them without justification may render the decision made unlawful. The SPG was quashed by the court.