Publication of s106 planning obligations

The Court of Appeal has recently overturned a High Court ruling and found that the grant of planning permission by Isle of Wight Council for 473 dwellings was unlawful. Charles Streeten and Brendan Brett explain why.

Following a two-day hearing earlier this month, the Court of Appeal (Singh and Lewis LJJ) has handed down judgment in Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488 overturning the decision of the High Court and finding that the grant of planning permission for 473 dwellings, a café, doctors’ surgery and other associated infrastructure at Westridge Acre Park on the Isle of Wight was unlawful on grounds of a failure to publish the section 106 planning obligation.

Delay

Dealing first with delay, the Court of Appeal rejected the Isle of Wight Council’s submission that the Claim for judicial review had been brought out of time. In doing so, Lewis LJ distinguished the decision of the Supreme Court in R (Flyde Coast Farms Ltd) v Flyde BC [2021] UKSC 18 (upon which the Council had relied) and reaffirmed the approach which has been established since the decision of the House of Lords in R (Burkett) v Hammersmith and Fulham LBC [2002] UKHL 23; namely that a challenge to a grant of planning permission will be in time if the challenge is brought within six weeks of the date the decision notice was issued.

At para. 51 of his judgment Lewis LJ explained that the question is whether “there is a material connection between [the conduct the legality of which is challenged] and the ultimate grant of planning permission”. Where there is such a material connection, Burkett applies. In this regard, he drew a distinction between cases where such a material connection exists, and those where the conduct challenged by the claimant is “a distinct step in the process”  upon which the issue of the decision notice is not “contingent”.

Applying those principles, all of the grounds relied upon by the Appellant had been brought in time.

Ground 1

Ground 1 concerned an alleged breach of Article 40(3) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (“DMPO”).

Specifically, neither the draft nor the final section 106 planning obligation had been published prior to the grant of permission. This the Council accepted. It argued, however, that: (1) the inclusion of the Heads of Terms in the officer’s report amounted to substantial compliance with that obligation; (2) that in circumstances where the Appellant had never requested the obligation, it could not say it had been prejudiced; and (3) that applying section 31 of the Senior Courts Act 1981, it was in any event highly likely the outcome would not have been substantially different.

The Court of Appeal rejected all three submissions. 

In an important judgment clarifying the proper approach to breaches of procedural obligations under the DMPO and other similar legislative provisions, Lewis LJ accepted the Appellant’s submission that the lawfulness of compliance with procedural requirements under the DMPO is to be approached applying the decisions in R v Soneji [2006] 1 AC 340 and A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, i.e. by asking what Parliament intended the consequences of the breach in question to be, having regard to: (1) the extent to which there had been substantial compliance with the purposes of the legislative provision; and (2) the extent of any prejudice (see judgment paras 53 and 61-63).

That is an analytically distinct process from asking whether a remedy should be refused pursuant to section 31 of the Senior Courts Act 1981 or as a matter of discretion, and the two questions should be kept separate (see para. 55).

Applying those principles, Lewis LJ found that the purpose of publication is to enable members of the public to know the terms of a proposed or agreed planning obligation, and to enable them to comment on it if they choose to do so (see judgment para. 58).

He rejected the Council’s submission that publishing the Heads of Terms in the officers report had constituted substantial compliance, given that they informed the reader only that a financial contribution towards the relevant highway works would be agreed, not what the relevant contribution actually was (see para. 65).

He also held that the consequences of the Council’s non-compliance was to deprive the Appellant of the opportunity to comment upon the contribution, the significance of which could be assessed with reference to what the Appellant might have wished to say, in which regard it was obvious that comment might well have been made on why a proposed section 106 agreement provided for a contribution which appeared to be well short of the amount required to do the highways works rendered necessary by the grant of planning permission. To the extent that the Council sought to demonstrate that the contribution was adequate, that was a matter going to remedy rather than prejudice (see para. 66).

Of particular relevance is that Lewis LJ rejected the Appellant’s argument, on the facts, that it had requested a copy of the section 106 agreement but made clear that the existence of a request was not necessary to establish prejudice. As he explained, the absence of a request for a copy of the agreement, whilst potentially relevant to prejudice, is not sufficient to establish the absence of prejudice, since members of the public are entitled to rely upon the register and to rely on checking it to see if a copy has become available (see para. 69). A failure to request a copy of the section 106 agreement will not, therefore, mean that a challenge based on a breach of Article 40 of the DMPO is bound to fail.

On the question of remedy, Lewis LJ reiterated what was said by the Court of Appeal in R (Plan B Earth) v Secretary of State for Transport [2020] PTSR 1146 regarding the high hurdle to be met under section 31(2A) of the Senior Courts Act, explaining that there was “no evidence (as opposed to submission or assertion by [the Respondent])” regarding the decision-making process by which the financial contribution had been fixed (see para. 77).

On this point, Singh LJ gave a concurring additional judgment, stressing the importance of the duty of candour and cooperation with reference to the decisions in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) and R (Citizens UK) v Secretary of State for Home Department [2018] EWCA Civ 1812 and explaining that to make good a submission under section 31 of the Senior Courts Act, “it was incumbent on the respondent to give a full and clear explanation” going on to say that “the Court should (in proper evidence, i.e. in a witness statement) be given a full, accurate and clear explanation of the decision-making process used by the public authority concerned and should not have to depend upon submissions by advocates nor should it have to piece together a number of different documents in order to understand what happened” (see paras. 105 - 106).

For all those reasons, the Court allowed the Appeal on Ground 1. 

Grounds 2 & 3

Grounds 2 and 3 concerning material considerations and apparent bias were dismissed, essentially for the reasons given by the judge at first instance (see paras. 79 – 93).

Ground 4

On Ground 4, Lewis LJ dismissed the appeal on the grounds that the procedural error which the judge at first instance had found to exist by virtue of the exclusion of a member of the Council’s planning committee who had missed a proportion of the site visit was rendered academic by a subsequent resolution of that committee (see paras. 96-98). He left open, however, the argument developed orally by the Respondent that the relevant rule in the council’s constitution was, on analysis, a standing order for the purposes of paragraph 42 of Schedule 12 of the Local Government Act 1972 and that it was a matter for the chairman of the committee to decide whether a councillor should be excluded (see paras. 99-100).

Relief

In light of all of the above, the Court of Appeal indicated its preliminary view that the Planning Permission should be quashed, but invited short submissions on the appropriate form of order (see para. 101)

Charles Streeten of Francis Taylor Building appeared with Brendan Brett, also of FTB, for the successful appellant Greenfields (IOW) Limited.