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

On 16 April 2025, the Court of Appeal gave its judgment reversing the decision of HHJ Jarman KC in R (Greenfields (IOW) Ltd. v. Isle of Wight Council: see [2025] EWCA Civ 488. Lewis LJ gave the leading judgment (Singh LJ concurring), allowing the appeal on the first ground, namely that “the judge was wrong to refuse permission on the ground that the grant of planning permission was unlawful because of the failure to publish the section 106 agreement” (see at [6(1)]).

Lewis LJ dealt with this ground at [53] ff. At [58] he said:

“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. The article envisages that members of the public may comment on the subject matter of the planning obligation. Publication of the section 106 agreement is not intended to provide an opportunity to make comments on wider issues to do with the desirability or otherwise of the grant of planning permission. Those matters will have been dealt with by the planning committee which resolved to grant the planning permission.”

And at [63], considering the question whether the admitted failure to comply with article 40(3)(b) meant that the relevant subsequent decision was invalid, he held:

“This is not a case where the intention underlying article 40(3) of the Order was that any failure to comply would result in the invalidity of a decision taken following such a failure. A breach of article 40(3) could occur in a wide range of factual circumstances, from situations where the content of a proposed section 106 agreement was not known to situations where, even though the agreement was not placed on the planning register, the content may in fact be in the public domain. The impact of the failure on the ability of members of the public to comment on the subject matter of a proposed section 106 agreement will, likewise, vary depending on the facts of a particular case. In those circumstances, I do not consider that the intention, or the purpose, underlying article 40(3) requires that any failure to comply renders a subsequent decision invalid. It is necessary to evaluate the consequences of non-compliance on the facts of the case.”

In Greenfields, the omission to publish did result in invalidity of the subsequent decision to grant planning permission. The consequence of non-compliance was (see at [66]) “to deprive the appellant of the opportunity to comment upon the contribution”, i.e. the financial contribution of the developer which was not known until after the grant of planning permission and which fell short of what was required to carry out relevant highway works. It was obvious that the appellant “might well have wanted to comment on the amount of the financial contribution”.

The Court of Appeal rejected the proposition that it was highly likely that the outcome would not have been substantially different if the section 106 agreement had been published, as it should have been. It was not possible to predict what the outcome would have been. Lewis LJ was therefore provisionally of the view (subject to hearing further argument on remedy) that the court should quash the unlawfully issued planning permission.