Housing developer’s aim to duck £200,000 legal agreement to improve Derbyshire schools rejected by “annoyed” councillors

More than a decade ago, Amber Valley Borough Council granted permission to Leabrooks butchers Owen Taylor and Sons to build 45 houses off Sleetmoor Lane, Swanwick, close to the crematorium and Thorntons headquarters.

Most of the development has now been built by developer Haart, with the majority of houses sold and occupied and only a “limited number” remaining for sale, the borough council said.

However, the firm, through DLP Consultants, had applied to remove the commitments agreed via the planning permission in 2016 to pay money to support school expansion and public open space maintenance.

In 2016, this saw the applicants owing £102,591 for school improvements and £16,354 for public open space maintenance.

Due to inflation and penalties for continued non-payments, this has increased to £203,237 for schools and £32,399 for public open space – totalling £235,636.

The new site owners had sought to scrap these owed payments due to alleged viability issues, claiming existing costs would see the developer left with a profit of £2.7 million – 13.59 per cent, below the generally accepted levels of 15-20 per cent.

However, the council’s viability consultants have found the applicant set their land value at £3.69 million, when the authority’s consultants say it ought to be £800,000.

Council consultants also say the developers alleged finance costs of £4.7 million are “significantly above typical expectations”.

Derbyshire County Council said the need for the payments remained and were “fairly and reasonably related in scale and kind to the development”.

Borough council planning officials wrote: “The development remains viable and capable of supporting the agreed planning obligations.

“National guidance is clear that such changes in market performance represent the realisation of development risk.

“The planning system does not operate to guarantee profit levels, nor to adjust policy requirements where schemes underperform relative to initial expectations.

“The proposal therefore seeks to improve profitability rather than address a genuine viability constraint.

“This position aligns with recent appeal decisions which confirms that planning obligations should not be reduced to protect developer returns or transfer commercial risk to the public.”

Council officials recommended that the plans should be rejected at a meeting on Monday, July 6, with councillors voting to refuse the attempt to scrap the school and open space payments.

They had written: “The applicant has failed to demonstrate that the discharge of the obligations would serve a useful purpose in that they fail to sufficiently demonstrate that the development is unviable.

“The planning obligations continue to serve a useful planning purpose because the infrastructure demands on education and public open space arising from the development persist.

“The proposal would result in a failure to mitigate the impacts of the development.

Councillor Chris Emmas-Williams, Labour leader, said after the meeting: “The concern with this one is that most of the site is completed with the last seven plots and road to be adopted the last things to sort.

“I have a lot of sympathy for the residents but with the county council saing the funding was still needed, our hands are tied.”

He said the developer had raised concerns about being able to complete the site should it be made to keep to its legal agreements of schools and open space funding.

Cllr Emmas-Williams said: “I do get annoyed when developers have applications approved with Section 106 to cover for improvements and the inconvenience of the development and then they come back and say it is no longer viable.

“I have said to the Government that I don’t think this is the right way to do things and that developers should adhere to what they agreed to.”