We have taken a housing developer to court over the lack of affordable housing on their site, even though it was an obligation of the planning permission approval.
The development known as Hawthorne Meadows off Chesterfield Road in Barlborough is being built by Arba Ground Trading Company and we noted that the development was almost built out meaning they had no intention of complying with the obligations of the planning permission and paying the monies owed.
The development was granted planning permission in March 2011 with the later amended proviso included as part of the s106 condition that 10% of the homes on the site be affordable housing. However, 126 houses have currently been built and occupied, leaving nine left to be built, which meant they could not meet the affordable housing target.
His Honour Judge (HHJ) Tindal presided over the case in the High Court in Birmingham and we argued that the developer appeared to be trying to build a market housing only development on the site, which is not what planning permission was granted for and was a breach of the s106.
HHJ Tindal stated that ‘a party who made promises under a s106 and then breaks those promises can expect themselves to be made subject to an injunction’. He went on to say that ‘the developer had raised over £31million and there is a strong public interest in this Council seeking an injunction and that as 126 properties are occupied the s106 cannot be complied with’.
HHJ Tindal issued an interim injunction on the developer that prohibits them from building or selling/leasing any more properties and that costs have been reserved. The case has been adjourned as the developer has appealed a February 2024 decision refusing to vary the s106 agreement to reduce their obligations. Once the appeal process is complete the matter will be returned to the High Court.
HHJ Tindal went on to state ‘I cannot understand what defence they can have. It should also be made clear that they owe the debt. What’s currently owed as we stand here today is the full amount of contributions owed under the original agreements.’
Cabinet Member for Governance, Councillor Duncan McGregor said, “We faced the real risk that the development would be completed, sold and occupied without the monies being paid and other obligations being met. The developer could then wind up the company, leaving all contributions outstanding with little means for the Council to enforce the terms of the obligations.
“Nothing which has occurred over the last three years gives us any confidence that the obligations would be promptly and fully complied with, that’s why we sought court action.
“But let this be a warning to developers. We issue planning permission on the proviso that its conditions are met. If they are not, then we will take legal action against those responsible.”
