AC-2024-LDS-000251 - [2025] EWHC 2256 (Admin)

In her skeleton argument, Ms Byrd adopted the points made in her application. She submitted that it was self-evident that the LPA had failed to comply with its obligation under article 40(3)(b) of the 2015 DMB Order to publish the draft and final section 106 agreement. Had it complied with that obligation, it is likely that expert comment on the timing of ecological surveys would have influenced the committee and it is “unlikely that the decision notice and agreement would have been issued in the same terms”.

While the Court of Appeal’s decision in Greenfields may not technically have changed the law, comment in the White Book (2025, vol. 1, 54.15.1) states that a proposition of law not previously open could become “maintainable” where, for example, the Court of Appeal had reversed a first instance decision. Here, permission to proceed on the issue would probably have been refused when the claim was brought, but the Court of Appeal had since clarified that breach of article 40(3)(b) may lead to the quashing of a planning permission.

In oral argument, Ms Byrd added that developments since the claim was brought and permission was granted justified reliance on the new fifth ground, which had not led to any procedural difficulties. The application was made promptly after the decision of the Court of Appeal and the other parties had been able to respond to it; there was no prejudice. If necessary, Ms Byrd said, the claimant sought relief from sanctions. Applying a Denton approach to the issue should lead to the application being granted, she submitted.

On the substance of the fifth ground, Ms Byrd submitted that there had been no indication at the committee meeting in December 2022 that “enabling works” would be carved out of reserved matters. The defects in the draft and final section 106 agreement leading to SPO (1), the comments of the deputy judge and then SPO (2), were not, as they should have been, put in the public domain before the decision to issue the planning permission.

In consequence, objectors like the claimant, the Yorkshire Wildlife Trust and others had no opportunity to comment on the defects in the section 106 agreement, from their perspective of addressing the merits of the planning application. Instead, the claimant was reduced to commenting in court after the event, constrained by the rigorous higher judicial review standard. That was no substitute for the public debate that would have followed compliance with the obligation to publish the draft and final section 106 agreements.

The consequence of the breach should, Mr Byrd submitted, be invalidity of the planning permission, as it was in the Greenfields case, where the facts were similar. If the consequence of debate following publication would have been entering into supplemental deeds such as SPO (1) and (2) or something like them, the committee would have been asked to approve the supplemental obligations, following the reasoning in R (Kides) v. South Cambridgeshire DC [2003] 1 P&CR 19, CA; and may well not have approved them.

For the LPA, Mr Carter submitted that the claimant had unjustifiably failed to plead the fifth ground when the claim was made; and that it is, in any case, unarguable and devoid of merit. While the LPA had breached its obligation to publish under article 40(3)(b) of the 2015 DMP Order, the extent of its obligation had been clear at least since Ouseley J’s decision in Midcounties Co-Operative Ltd v. Wyre Forest DC [2009] EWHC 964 (Admin) (dealing with the predecessor provision): see at [83]-[116].

Mr Carter submitted that the Court of Appeal’s decision in Greenfields had not altered the law; it established no new principle. The practice direction PD 54A, at paragraph 12.2, requires a claimant seeking to add a new ground to do so promptly and to explain any delay in making the application. There was no justification for adding a new ground so late in the proceedings, he said. Ms Naylor of the claimant had known since March 2024 that the LPA did not intend to publish the section 106 agreement in advance of the decision.

Ms Naylor did not object or comment at the time. Nor did this ground feature in the pre-action protocol correspondence. The application to rely on the fifth ground had not been made promptly. Further, the LPA submitted that permission to amend should be refused because the fifth ground was devoid of arguable merit. While breach of the obligation to publish is accepted, the breach here adds nothing to the claimant’s case, said Mr Carter.

That is because, he explained, the only point made is that the claimant did not see what approach was being taken to biodiversity issues in the section 106 agreement and the risk of premature works affecting ecological interests prior to any requirement for further surveys. That is the subject of the third and fourth grounds already; the failure to publish point does not add anything of substance to what is already contended in the two existing grounds. The fifth ground stands or falls with the other two grounds.

Furthermore, had the section 106 agreement been published in draft and the claimant had commented on it, that would have made no difference to the LPA’s decision given that, Mr Carter submitted, the approach it adopted in the draft section 106 agreement was adequate and lawful. Permission should be refused under section 31(3C) and (3D) of the Senior Courts Act 1981 (SCA 1981) or, if permission is granted, the claim dismissed under section 31(2A).

The developer made submissions to the same effect on the Court of Appeal’s decision in Greenfields. It had not changed the law; and, Mr Booth KC submitted, “there is no good reason why the court should entertain a ground of challenge brought significantly late and which could and should have been brought earlier”. The claimant had been legally advised during the process and had not complained in March 2024 when Mr Grayson wrote that the section 106 agreement would be published at the same time as the decision.

The amendment should be treated in the same way as a judicial review brought out of time. The test of arguability also applies (R. (Wingfield) v. Canterbury CC [2019] EWHC 1975, per Lang J at [87]-[88). The factual position in Greenfields is distinguishable because in that case, the section 106 agreement secured a highways contribution about £350,000 lower than suggested in the officer’s report.

Here, Mr Booth submitted, there was no similar prejudice to the claimant. Like other objectors, it had the opportunity and took the opportunity to make very detailed representations to the LPA ahead of the committee meeting. The claimant’s points about biodiversity lacked merit at the time those representations were made and still do. Even if the section 106 agreement was defective, the defects have been remedied by SPO (1) and (2).

Mr Booth, like the LPA, also relied on the “highly likely” test in section 31(3C) and (3D) or, if permission is granted, (2A) of the SCA 1981. The outcome would not have been substantially different for the claimant if the obligation to publish draft and final versions of the section 106 agreement had been complied with, he submitted.