The Court was asked whether a planning authority could validly achieve by agreement any purpose which it could not validly achieve by planning condition or whether the test for validity was the same in each case.
Held: A council may agree to a restriction on use outside the scope of the planning acts. An agreement under section 52 might be valid notwithstanding that it did not satisfy the second of the Newbury tests.
The powers of a planning authority to bring about a planning obligation were not controlled by the nature and extent of its statutory powers to grant planning permission subject to conditions. A planning obligation did not have to relate to a permitted development.
Ralph Gibson LJ said: ‘For my part I accept the submission of Mr Gray that, upon the true construction of s. 52 of the Town and County Planning Act 1971, the powers of a planning authority under that section are not controlled by the nature or extent of its powers under s. 29 of the Act of 1971; and I reject the submission advanced for the plaintiffs that those powers are so controlled. The extent of the s. 52 powers is to be determined by reference to the words there used having regard to the context. In particular they give power to a planning authority to enter into an agreement with the owner of the land ‘for the purpose of restricting or regulating the development or use of land.’ If such an agreement is required by a planning authority, and the requirement is made for such a purpose, with due regard to relevant considerations, and is not unreasonable (see the first and third requirements stated in Newbury District Council -v- Secretary of State for the Environment  AC 578 at 618), such requirement is not ultra vires merely because the purpose could not be validly achieved by the imposition of a condition under s. 29 of the Act of 1971. The two statutory powers are distinct and the exercise of either of these distinct powers has separate consequences and is subject to different procedures.
If such an agreement is required, and the land owner agrees to enter into it, the validity of the agreement depends upon the same primary test, namely whether it was made ‘for the purpose of restricting or regulating the development or use of the land’.’
Ralph Gibson LJ
Times 11-Nov-1993, Gazette 26-Jan-1994,  1 WLR 376
England and Wales
Cited – Tesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
Cited – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.80905