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

Encouraged by the Court of Appeal’s decision, on 28 April 2025 the claimant in the present case made an avowedly out of time application to add the proposed fifth ground of challenge: failure to publish the section 106 agreement in accordance with Article 40(3)(b) of the 2015 DMP Order, rendering the grant of planning permission invalid. The claimant argued in the written application that the facts in Greenfields and the Court of Appeal’s reasoning and decision supported the same outcome in this case.

The claimant relied on Ms Naylor’s June 2023 request, denied by the LPA, for “all outstanding agreements being drafted or discussed prior to the decision date …”, including the section 106 agreement and “any other details which need to be agreed prior to determination. Ms Naylor had said in her email that “these documents should already be published on the Planning Portal”.

The claimant in its application complained that neither it nor the wider public had any opportunity to comment on the agreement prior to the issue of the decision notice. The gist of the argument on the fifth ground was that the claimant and others could have commented on the Biodiversity Assessment and the concern that the biodiversity baseline could be artificially lowered; the same arguments as made in this judicial review but in a timely manner on a merits basis, not a judicial review basis after the event.

The claimant contends that it could have drawn the attention of the LPA’s attention to the defects in the section 106 agreement which the LPA and the developer have since sought to remedy after the issue of proceedings, by means of SPO (1) and SPO (2). Had the claimant or others been able to comment on the section 106 agreement as it stood prior to those amending SPOs, the claimant could have commented in the appropriate forum without recourse to judicial review. There had been no substantial compliance with article 40(3)(b) and the outcome could well have been substantially different.

The developer filed a preliminary response on 14 May 2025 objecting to the new fifth ground being allowed to proceed: it was well out of time, without any adequate reasons being advanced; the Court of Appeal’s decision in Greenfields had not changed the law; it was a decision on its facts. The new ground had not arisen out of any disclosure or pleadings. The time estimate would be longer and the hearing date imperilled (it has in the event been kept). The LPA supported the developer’s position in a letter of 19 May 2025.