Factual and Procedural Background
This appeal concerns the grant of planning permission for a development including 473 new houses and related infrastructure in The City. The appellant, Company A, is a company limited by guarantee whose shareholders include local residents opposing the permission. The first respondent, Company B, resolved in July 2021 to grant planning permission subject to a section 106 agreement securing a financial contribution by the developer towards highway works at two junctions. The planning application was reconsidered in April 2023, and permission was again granted.
The section 106 agreement, negotiated by Company B's officers, was not placed on the planning register as required by the relevant statutory procedure. The agreement fixed the financial contribution at £406,359. Planning permission was formally granted in August 2023.
Company A applied for judicial review of the grant of planning permission, raising five grounds of claim, four of which are relevant on appeal. The High Court judge refused permission on two grounds: failure to publish the section 106 agreement prior to granting permission, and alleged failure by the planning committee to consider material considerations or being misled by officers. Permission was granted on two other grounds but the claims were dismissed. The appellant was granted permission to appeal on four grounds relating to these issues and procedural irregularities.
The respondent contended additional grounds for upholding the judge's order, including that certain claims were out of time or academic, and challenged the findings on procedural irregularity and material considerations.
Legal Issues Presented
- Whether the failure to publish the section 106 agreement as required by statute before granting planning permission rendered the grant unlawful.
- Whether the planning committee failed to consider material considerations at the April 2023 meeting, including the lapse of outline permission for another development and the absence of progress on highway improvement reviews.
- Whether the conduct of the acting chairman of the planning committee gave rise to an appearance of bias invalidating the grant of planning permission.
- Whether the procedural irregularity in excluding a councillor from the July 2021 meeting vitiated the subsequent resolutions, including the April 2023 meeting.
Arguments of the Parties
Appellant's Arguments
- The failure to publish the section 106 agreement deprived the public, including Company A, of the opportunity to comment on a critical financial contribution, rendering the grant unlawful.
- The planning committee failed to have regard to material considerations such as the lapse of outline planning permission for another development and the lack of progress on highway improvement reviews, leading to irrational or improper decision-making.
- The conduct of the acting chairman, including exclusion of a councillor from the meeting and refusal to allow another councillor to speak, gave rise to an appearance of bias.
- The exclusion of the councillor from the July 2021 meeting was a procedural irregularity that also tainted the later April 2023 resolution, which relied on the earlier resolution as a material consideration.
Respondent's Arguments
- The failure to publish the section 106 agreement did not invalidate the grant as the heads of terms were published and there was no prejudice; the financial contribution was adequate and the outcome would not have been different.
- The appellant's claims relating to earlier resolutions were out of time or academic, given the later resolution and grant of permission in April 2023 and August 2023 respectively.
- The planning committee was entitled to regard the Pennyfeathers site as allocated in an emerging plan, and the lapse of outline permission was not material.
- The chairman's conduct did not amount to apparent bias under established legal tests.
- The exclusion of the councillor from the July 2021 meeting was lawful under the Council's constitution or common law, and even if irregular, was academic due to subsequent events.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23 |
Determination of when time begins to run for judicial review claims in multi-step planning permissions. |
The court applied Burkett to hold that the time for bringing claims ran from the date of grant of planning permission, not from earlier committee resolutions, as the earlier resolution was not a distinct step. |
| R (Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 18 |
Consideration of challenging multi-step administrative actions within statutory time limits. |
Referenced to discuss whether earlier steps could be challenged within time if they materially affected the final decision; court found the earlier resolution was not sufficiently distinct. |
| R v Soneji [2005] UKHL 49 |
Framework for assessing consequences of non-compliance with statutory procedural requirements. |
Applied to determine whether failure to publish the section 106 agreement invalidated the decision; court considered purpose and prejudice. |
| A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 |
Refined approach to consequences of procedural breaches and whether invalidity follows. |
Applied to confirm that failure to comply with publication requirements does not necessarily invalidate a decision; detailed analysis of purpose and prejudice required. |
| Midcounties Cooperative v Wyre District Forest [2009] EWHC 964 (Admin) |
Consideration of compliance with publication requirements for planning obligations. |
Used to compare with current case; court distinguished as heads of terms here did not include financial contribution details. |
| R (Davies) v Oxford City Council [2023] EWHC 1737 (Admin) |
Effect of publication of heads of terms on compliance with statutory requirements. |
Referenced to note that where heads of terms include detailed financial contributions, publication may suffice; court found facts here different. |
| R (Worcestershire Acute Hospitals Trust) v Malvern Hills District Council [2023] EWHC 1995 (Admin) |
Assessment of prejudice from failure to publish planning obligations. |
Referenced in analysis of impact of failure to publish section 106 agreement. |
| R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 |
Interpretation of statutory test for refusing remedy where outcome would not have been substantially different. |
Applied to consider whether failure to publish section 106 agreement warranted refusal of remedy; court found evidence insufficient to conclude outcome would be the same. |
| R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269 |
Clarification of threshold for refusing remedies on basis of outcome likelihood. |
Referenced to highlight high threshold for refusing remedy under statutory provisions. |
| Porter v Magill [2001] UKHL 67 |
Test for apparent bias: whether a fair-minded and informed observer would consider there was a real possibility of bias. |
Applied to assess allegations of bias against the chairman; court found no appearance of bias on the facts. |
| R v Lancashire County Council, ex parte Huddlestone [1986] 2 All ER 941 |
Duty of candour and cooperation by public authorities in judicial review proceedings. |
Referenced in discussion of respondent's duty to provide full and accurate explanations in evidence. |
| R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) |
Summary of duty of candour and cooperation principles. |
Referenced to support the requirement for clear and accurate factual explanations from public authorities. |
| R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 |
Affirmation of duty of candour and cooperation in judicial review. |
Referenced to reinforce the obligation on public authorities to assist the court. |
Court's Reasoning and Analysis
The court first addressed the issue of delay, applying the House of Lords decision in Burkett to conclude that the relevant time for bringing a judicial review claim ran from the date of grant of planning permission in August 2023, rather than from earlier committee resolutions. The earlier July 2021 resolution was not a distinct step but part of a continuous process culminating in the final grant.
Regarding the failure to publish the section 106 agreement, the court analysed the statutory duty under article 40(3)(b) of the Order and the purpose of publication—to enable public comment on the agreement's terms. The court rejected the appellant's submission that this was a statutory duty to consult, finding instead it was a duty to publish. The failure to publish the agreement or its draft before granting permission was a breach.
The court applied the Soneji and A1 Properties frameworks to determine whether the breach rendered the decision invalid. It held that while the purpose of the duty did not require automatic invalidity, in this case there was little compliance and significant prejudice, as the financial contribution amount was not known and the appellant was likely to have commented. Thus, the decision was unlawful.
On remedies, the respondent's argument that the outcome would not have been different was rejected due to insufficient evidence to conclude the financial contribution would have been the same if the agreement had been published and open to comment. The court declined to refuse a remedy.
On the alleged failure to consider material considerations, the court found that the lapse of outline permission for another development was not material to the planning committee's decision, which related to whether to approve the current application. The absence of a formal review of highway works was also not determinative, as coordination could be achieved in various ways. Permission to challenge on this ground was refused.
Regarding the appearance of bias claim, the court applied the Porter v Magill test and found no real possibility of bias arising from the chairman's conduct, including refusal to allow a non-committee councillor to speak. The conduct was consistent with procedural rules and did not amount to bias.
Finally, the court considered the procedural irregularity of excluding a councillor from the July 2021 meeting. While the exclusion was a procedural irregularity, the matter was academic because the councillor attended the April 2023 meeting, which reaffirmed the earlier resolution and was the basis for the final grant. The councillor's changed vote and explanations meant the irregularity did not affect the validity of the final decision.
The court also emphasised the duty of candour and cooperation on public authorities in judicial review proceedings, criticizing the respondent for relying on piecemeal submissions and documents rather than clear and complete evidence.
Holding and Implications
Holding: The appeal is allowed on ground 1. The failure by Company B to comply with article 40(3)(b) of the Order by not placing a copy of the proposed or final section 106 agreement on the planning register prior to issuing planning permission on 4 August 2023 rendered that decision unlawful and it should be quashed.
The appeals on grounds 2, 3, and 4 are dismissed. The failure to consider material considerations, the appearance of bias, and the procedural irregularity relating to the excluded councillor do not invalidate the grant of planning permission.
Implications: The direct effect is that the planning permission granted on 4 August 2023 is unlawful and must be quashed, enabling Company B to comply with its statutory obligations by publishing the section 106 agreement and allowing public comment, particularly on the financial contribution for highway improvements. The validity of the April 2023 resolution granting permission is not affected by the failure to publish. No new precedent is established beyond the application of existing principles to the facts.