High Court Ruling overturned due to LPA failing to publish S106 prior to granting approval

What is the background to this case?

 

In July 2021, Members of Isle of Wight Council’s Planning Committee resolved to approve proposals by Westridge Village Ltd.  for 473 new homes, a café, doctors’ surgery and other associated infrastructure at Westridge Acre Park, Ryde.    However, despite the resolution, the formal Decision Notice was never issued by the Council.

 

Following the Committee meeting, procedural concerns were raised by local residents about the way in which the Committee meeting had been conducted.      At the same time, Members of the Committee raised concerns and motions were submitted in January 2022 and March 2022 asking that the committee be given the opportunity to reconsider its decision.

 

As such, in April 2023 the application went back to Committee, where Members resolved to grant permission again subject to securing a section 106 agreement.

 

After the meeting, the S106 was duly agreed and signed, however the Council failed to upload the agreement on the planning register ahead of issuing the formal decision notice on 4^th August 2023.

 

What happened next?

 

Residents group Greenfields (IOW) Ltd subsequently launched a judicial review of the consent based on four grounds.

 

One of the grounds concerned an  alleged breach of article 40(3) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 resulting from the council’s failure to place the Section 106 agreement on the “planning register”.

 

Article 40(3) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 is about ensuring transparency and public access to information about planning applications within a local planning authority’s jurisdiction.

 

In September 2024, the High Court rejected the judicial review despite the judge finding  "procedural irregularity" in how the application was initially considered by the Council’s planning committee.      In terms of the Council’s failure to publish the S106 Agreement, the judge said ‘As in  R(Davies) v Oxford City Council [2023] EWHC 1737 (Admin), the heads of terms in the present case were set out in the officer's report which was put on the website’.

 

Greenfields then lodged an appeal in the Court of Appeal and a hearing took place on 8 and 9 April 2025.   Again one of the grounds related to the Council’s failure to publish the S106 Agreement on its planning register.

 

 

What did the Court of Appeal Judgement say?

 

Regarding the alleged breach of article 40(3) of the Town and Country Planning (Development Management Procedure) (England) Order 2015, the judgement states that “The purpose of article 40(3)(b) of the Order appears from its wording and statutory context. Certain documents must be placed on the planning register in the period before an application for planning permission is finally disposed of. They include a copy of a planning obligation (or a highways agreement) which it is proposed to enter into or which has been entered into.  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 the proposed or agreed planning obligation if they choose to do so”.

 

In this case, the Council accepted that it had failed to publish the section 106 agreement but in the High Court judgement it was claimed that there was substantial compliance because the officer’s report referred to the heads of terms and that was sufficient.  However Lord Justice Lewis rejected this claim stating that “The heads of terms would only inform the reader that a financial contribution towards the relevant highway works would need to be agreed. It does not tell the reader what that contribution is”.   

 

Lord Justice Lewis concluded that the “judge was wrong to refuse permission to apply for judicial review on this ground. He ought to have granted permission and, for the reasons given above, the court should not refuse a remedy in relation to ground 1 of the appeal. The court cannot be satisfied that it is highly likely that the outcome would not be substantially different. The financial contribution required might be different if the section 106 agreement had been placed on the planning register and members of the public had been able to comment on its terms”.   

 

He further found that there was an “overwhelming likelihood” that the Appellant would have commented on the S106 Agreement “before planning permission was granted on 4 August 2023”.

 

The appeal was therefore allowed on this ground stating that “The failure to comply with the obligation in article 40(3)(b) of the Order to place a copy of the proposed section 106 agreement, an agreement entered into, on the planning register rendered the decision of 4 August 2023 invalid”.

 

He did not allow the appeal on the three other grounds put forward that related to the April 2023 planning committee meeting. 

 

In handing down the judgement, Lord Justice Lewis said that “The validity of the resolution of 25 April 2023 approving the grant of planning permission is not, however, affected by the failure to comply with article 40(3)(b)”.   In other words, whilst the decision of 4 August 2023 to issue planning permission has been deemed unlawful and quashed, the validity of the Committee’s resolution of 25 April 2023 to approve the grant of planning permission is not, affected by the failure to comply with article 40(3)(b).   The judgement will therefore enable the Council to comply with its obligation, place the section 106 on the planning register and allow comment on the agreement and, in particular, the financial contribution for highway improvements.