Invalidity of Planning Permissions for Failure to Publish Section 106 Agreements

Introduction

In Greenfields (IOW) Ltd, R (On the Application Of) v Isle of Wight Council & Anor [2025] EWCA Civ 488, the Court of Appeal confronted a judicial review challenge to a local authority’s grant of planning permission. The development in question comprised 473 new homes in Ryde, Isle of Wight. The appellant, Greenfields (IOW) Ltd, bringing the challenge on behalf of local residents, relied on four principal grounds: (1) the Council’s failure to publish the proposed Section 106 agreement on its planning register; (2) alleged failure to consider material considerations at the April 2023 committee meeting; (3) apparent bias by the committee chair; and (4) procedural irregularity in excluding a councillor from a July 2021 meeting. The High Court dismissed all grounds and refused permission to challenge the first and second. On appeal, the Court of Appeal upheld three grounds but found that the failure to publish the Section 106 agreement rendered the grant of permission unlawful and must be quashed.

Summary of the Judgment

• The Court held that Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 imposes a public‐register duty to publish proposed or final Section 106 agreements before final disposal of an application.
• Applying the Soneji/A1 Properties analytical framework, the Court decided that failure to comply did not automatically invalidate every planning permission but must be assessed case by case.
• Here, the Council never published any version of the Section 106 agreement, depriving interested parties of knowledge of the developer’s £406,359 highway contribution and a chance to comment. That omission rendered the 4 August 2023 grant unlawful.
• The Court of Appeal quashed the permission on ground 1. It refused to quash or disturb the permission on grounds 2 (material considerations), 3 (bias), and 4 (procedural irregularity), which it found unarguable or academic.

Analysis

1. Precedents Cited

• R (Burkett) v Hammersmith & Fulham LBC [2002] UKHL 23: Judicial review time limit for planning permission runs from grant, not committee resolution.
• R (Fylde Coast Farms Ltd) v Fylde BC [2021] UKSC 18: Multi-step administrative action and time‐limit interaction, recognizing Burkett but suggesting future reconsideration.
• R v Soneji [2005] UKHL 49 & A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27: Modern “consequence‐based” test for procedural breaches—focus on statutory purpose and actual prejudice rather than rigid category rules.
• R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214: Interpretation of “highly likely” and “substantially different” outcome under section 31(2A).
• Midcounties Co-operative v Wyre DC [2009] EWHC 964 (Admin) & R (Davies) v Oxford CC [2023] EWHC 1737 (Admin): Section 106 publication requirements and substantial compliance via heads of terms.
• Porter v Magill [2001] UKHL 67: Test for apparent bias—would the informed observer perceive a real possibility of bias?

2. Legal Reasoning

The Court followed the two‐stage Soneji/A1 Properties approach to assess whether breach of Article 40(3)(b) invalidates a permission:

1. Identify the statutory purpose: Article 40(3)(b) aims to ensure that members of the public know the content of proposed or final Section 106 obligations and can comment on those obligations—especially the sums payable or obligations imposed.
2. Assess the consequences of non-compliance: Because Article 40(3)(b) duties vary in practical importance by case, failure does not always nullify a permission. One must examine whether the omission deprived consultees of a meaningful opportunity to comment on obligations that directly affect them.

In Greenfields, no version of the Section 106 agreement—setting the developer’s £406,359 contribution for junction works—was ever published. Interested residents (and Greenfields shareholders) were explicitly checking the planning register. They lost any realistic chance to challenge or seek clarification of the contribution’s adequacy. The Court concluded this specific prejudice rendered the consent unlawful.

On alternative grounds under section 31(2A) of the Senior Courts Act 1981, the Council could not show it was “highly likely” that the outcome would have been the same if the agreement had been published. Competing estimates of total junction‐improvement costs ranged from ~£777,000 to £1.36 million; without knowing the precise figure, consultees could not address potential funding shortfalls.

3. Impact

This decision establishes that:

• Planning permissions subject to Section 106 obligations may be quashed if local authorities fail to publish proposed or final obligations and thereby prevent meaningful public scrutiny.
• Article 40(3)(b) duties are not formalistic only; where non‐publication causes actual prejudice in a given case, the consent is unlawful.
• Authorities must ensure draft and executed Section 106 documents are placed on the planning register before final disposal—especially where financial contributions or obligations are central to the decision.
• Courts will apply the Soneji/A1 Properties balancing test rather than an automatic invalidity rule, but factual prejudice remains decisive.

Complex Concepts Simplified

• Section 106 agreement: A legal contract between developer and planning authority requiring actions or payments (often to fund infrastructure) as a condition of permission.
• Planning register (Article 40): A public record of all live planning applications and related documents (including draft/final Section 106 obligations) that must be available online.
• Judicial review time‐limit: Challenges to planning decisions must be lodged within six weeks of the decision’s grant date, not earlier board resolutions (Burkett principle).
• Soneji/A1 Properties test: A two‐stage analysis focusing on the purpose of the statutory requirement and the real‐world consequences of non-compliance before deciding if a procedural breach invalidates the outcome.
• Section 31(2A) SCA 1981: Courts must refuse relief if it is “highly likely” that the public body’s breach did not affect the decision outcome.
• Apparent bias: Assessed by the “fair‐minded and informed observer” test (Porter v Magill); judges ask whether there is a real risk the decision-maker was biased.

Conclusion

Greenfields (IOW) Ltd v Isle of Wight Council confirms that local authorities must adhere strictly to Article 40(3)(b) publication obligations for Section 106 agreements. While not every breach leads automatically to invalidation, where failure to publish deprived affected persons of any real opportunity to comment on obligations central to the decision, the planning permission is unlawful. This judgment underscores the duty of transparency in planning procedures and will guide authorities and stakeholders in ensuring full public access to all key documents before permission is granted.