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Car parking for new flats? Fine outside London, but a fine in London!

New residential developments can place a strain on parking provision, and in urban locations in particular local planning authorities look to section 106 agreements to implement policies requiring new developments to be “car-free”.

The question is whether they can legally do that. The answer has been provided by the recent Court of Appeal decision in R (on the application of Khodari) v The Royal Borough of Kensington and Chelsea Council which has determined that they cannot. Mr and Mrs Khodari are leaseholders of a flat in Kensington.

The freeholders of the block applied for planning permission to convert the existing five flats into eight. The grant of planning permission would have led to the Khodaris’ lease being terminated due to a development break clause contained within it, so they did their utmost to scupper the proposals. Planning permission was granted in March 2015, and an

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associated section 106 agreement prevented occupiers of the additional three flats from applying for Council parking permits. The Khodaris successfully challenged the planning permission in the High Court, and the planning permission was quashed on the basis that the imposition of a planning obligation preventing applications for parking permits was not within the Council’s statutory powers. The Royal Borough of Kensington and Chelsea (“RBKC”) appealed. The section 106 agreement was entered into not only under section 106 of the Town and Country Planning Act 1990 (“TCPA”), but also a number of other powers including section 111 of

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