Planning permission was granted subject to s.106 agreement in respect of a strategic allocation of land east of Exeter for development of (inter alia) 2500 dwellings. The agreement included a requirement that development comprising >10 dwellings was to connect to any existing or proposed ‘Decentralised Energy Network’ unless demonstrated not to be viable or feasible.
The Defendant had commenced work on an early phase of development (144 dwellings) and was intent upon not making provision for connection to a district heating system and relying upon individual gas boiler installations instead. Its main contention was that it was not bound to make provision for connection to a system that did no already exist. Exeter City Council issued proceedings.
The court (HHJ Cotter QC sitting as Judge of the High Court) restrained the Defendant, upon the City Council undertaking to pay any damages for any losses that the Defendant may sustain that the court considers that it should pay, from carrying out or commissioning any works of construction that would prevent the installation of the district heating system network so as to enable connection to it.
Postscript. Development proceeded with the necessary connections.
Simon Pickles advised and represented Exeter City Council.