Introduction

The case of Flynn, R (On the Application Of) v. The London Borough of Southwark Council & Anor ([2021] EWCA Civ 827) is a landmark judgment delivered by the England and Wales Court of Appeal (Civil Division) on May 28, 2021. This case delves into complex issues surrounding the delegation of authority within local councils, the interpretation and enforcement of section 106 agreements under the Town and Country Planning Act 1990, and the obligations pertaining to affordable housing in large-scale urban development projects.

The appellant, Jerry Flynn, a member of the 35% Campaign advocating for increased affordable housing, challenged the planning permission granted by the London Borough of Southwark Council for the redevelopment of the Elephant and Castle area. The central contention revolved around the legality and scope of the section 106 agreement, especially concerning the provision of affordable housing and the delegation of negotiation authority to council officers.

Summary of the Judgment

The Court of Appeal dismissed Jerry Flynn's appeal, upholding the original decision by Dove J. to reject the judicial review claim. The court affirmed that the section 106 agreement negotiated by the council's officers was within the scope of their delegated authority and complied with relevant policies and legal standards. The judgment meticulously analyzed the delegation of authority, the interpretation of the committee's resolution, and the mechanisms established to ensure the delivery of affordable housing despite potential changes in the development's viability.

Key findings include:

• The officers of the Southwark Council acted within their delegated authority as per the planning committee's resolution.
• The section 106 agreement's provisions to secure affordable housing, including flexible mechanisms for "build to sell" scenarios, were lawful and aligned with the committee's intentions.
• The committee was not materially misled regarding the grant funding from the Greater London Authority (GLA), and the assumption that planning permission would proceed regardless of grant availability was reasonable.

Analysis

Precedents Cited

The judgment referenced several key precedents that shaped its reasoning:

• Trump International Golf Club Scotland Ltd. v The Scottish Ministers ([2015] UKSC 74): Established principles on the interpretation of delegations, emphasizing that deference should be given to the decision-makers' expertise and intentions.
• Plan B Earth v Secretary of State for Transport ([2020] EWCA Civ 214): Clarified the court's approach to the duty under section 31(2A) of the Senior Courts Act 1981, particularly concerning whether a decision would have been the same if a particular error had not been made.
• R. (on the application of Springhall) v The London Borough of Richmond Upon Thames ([2006] EWCA Civ 19): Highlighted the boundaries of delegated authority and the importance of not overstepping these limits.
• R. (on the application of Kides) v South Cambridgeshire District Council ([2002] EWCA Civ 1370): Affirmed that once officers have negotiated an appropriate section 106 agreement within their authority, there is no obligation to refer the matter back to the planning committee.

These precedents collectively underscore the judiciary's respect for local authorities' expertise in planning matters, while also delineating the boundaries of delegated authority to prevent overreach.

Legal Reasoning

The core of the legal reasoning in this judgment revolves around the concepts of "delegation" and "vires" (the legal power to act). The plan committee's resolution granted officers the authority to negotiate an "appropriate legal agreement" (section 106 agreement), provided they adhered to the guidelines set forth in the Director of Planning's report.

The appellant argued that the officers exceeded their delegated authority ("ultra vires") by structuring the section 106 agreement in a manner that did not strictly adhere to specific provisions outlined in the officer's report. Specifically, Flynn contended that the agreement's fallback arrangements for "build to sell" scenarios deviated from the committee's resolution.

However, the Court of Appeal found that:

• The officers acted within the broad framework of their delegated authority, interpreting the committee's resolution with reasonable deference to their professional judgment.
• The section 106 agreement's flexibility, including mechanisms to secure affordable housing under various development scenarios, was consistent with the overarching objectives outlined in the Director of Planning's report.
• The officer's report served as guidance rather than a prescriptive template, allowing officers the discretion to tailor agreements to complex development realities.

Furthermore, the court addressed the appellant's concerns about the definitions of "social rented" versus "social rent equivalent" accommodation. It concluded that the nuanced differences did not materially impact the legality or appropriateness of the agreement, especially given the small number of units affected.

Impact

This judgment carries significant implications for local authorities and developers alike:

• Delegation of Authority: Reinforces the principle that planning officers have substantial discretion within the scope of their delegated authority, especially in complex and large-scale developments.
• Section 106 Agreements: Demonstrates that flexible and adaptive mechanisms within section 106 agreements are permissible, provided they align with the overarching objectives of affordable housing delivery.
• Judicial Review Challenges: Sets a precedent that challenges to planning permissions based on alleged overreach in negotiating section 106 agreements are likely to fail unless clear evidence of deviation from delegated authority is presented.
• Affordable Housing Provisions: Highlights the judiciary's support for local authorities in their efforts to secure affordable housing, provided that the methods employed are reasonable and within legal bounds.

Future cases involving section 106 agreements and delegation will likely reference this judgment to determine the boundaries of officers' discretion and the proper interpretation of planning committee resolutions.

Complex Concepts Simplified

Section 106 Agreements

Under the Town and Country Planning Act 1990, section 106 agreements are legally binding obligations that developers enter into with local councils. These agreements ensure that certain community benefits, such as affordable housing or infrastructure improvements, are delivered as part of a development project.

Delegation of Authority

In local government, decision-making authority is often delegated from elected committees to appointed officers. This delegation allows for efficient handling of complex tasks, such as negotiating section 106 agreements. However, officers must operate within the scope of the authority granted by the committee.

Vires

The term vires refers to the legal power or authority to act. When a body or individual acts ultra vires, they are exceeding their granted authority, rendering their actions invalid or unenforceable.

Build to Sell vs. Build to Rent

Build to Sell refers to residential developments intended for sale to end-users, whereas Build to Rent projects are designed to be rented out, often with professional management, providing long-term rental options for tenants.

Affordability in Housing

Affordable housing initiatives aim to ensure that a portion of new residential developments is accessible to individuals and families with lower incomes. Policies often define various categories, such as "social rented" housing, which is typically managed by local authorities or registered providers, and "social rent equivalent" housing, which might have different management arrangements but similar affordability objectives.

Conclusion

The judgment in Flynn v. The London Borough of Southwark Council serves as a crucial affirmation of the balance between local government authority and judicial oversight in the realm of urban planning and development. By upholding the delegation of authority to council officers and validating the structure of the section 106 agreement, the Court of Appeal underscored the necessity for local authorities to exercise their professional judgment within the bounds of their delegated powers.

For practitioners and policymakers, this case reinforces the importance of clear delegation frameworks and the prudent negotiation of section 106 agreements that align with both legal requirements and community objectives. Moreover, it highlights the judiciary's role in ensuring that such processes remain anchored in reasonableness and legal propriety, rather than constraining elected bodies with excessive judicial intervention.

Ultimately, this judgment contributes to the evolving landscape of urban development law, emphasizing adaptability, professional discretion, and steadfast commitment to delivering essential community benefits like affordable housing.