Planning permission quashed after failure to publish Section 106 agreement

The courts are increasingly scrutinising failures to publish draft Section 106 agreements prior to the grant of planning permission, recognising the importance of transparency and public participation. Following the Court of Appeal’s ruling in Greenfields v Isle of Wight Council [2025] EWCA Civ 488, which confirmed that such a failure could invalidate planning permission, the Planning Court has now reinforced this position. In Chidswell Action Group, R (On the Application Of) v Kirklees Council [2025] EWHC 2256 (Admin), the grant of planning permission was quashed due to the failure to publish the Section 106 agreement before issuing the decision notice.

Background

The case concerned a judicial review of outline planning permission for a 181-home development, which was subject to a Section 106 agreement. The Defendant failed to publish the draft Section 106 agreement prior to issuing the decision notice, breaching Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) Order 2015 (“DMP Order”). 

The Claimant alleged that this breach rendered the decision invalid as objecting parties were denied the opportunity to comment and advocate further consideration in respect of the agreement’s shortcomings, particularly in relation to Biodiversity Net Gain (“BNG”), biodiversity management, and enhancement obligations.

Grounds 3 and 4: Reliance on ecological surveys without sight of the planning condition and reliance on inaccurate Biodiversity Net Gain assessment 

The original grounds for which permission had been granted were dismissed:

• Ground 3 alleged that the Claimant relied on future ecological surveys without sight of the relevant planning condition and imposed ineffective conditions that failed to safeguard ecological interests.
• Ground 4 challenged the reliance on an inaccurate BNG assessment and the failure to secure BNG through legally robust mechanisms.

Mr Justice Kerr found that supplementary planning obligations addressed these concerns. 

Ground 5: Failure to publish the S106 agreement prior to the planning permission decision

A late application to introduce Ground 5 was submitted by the Claimant following the Court of Appeal’s decision in Greenfields. The case had confirmed that a local planning authority’s failure to publish a Section 106 agreement prior to granting planning permission could constitute a breach of Article 40(3)(b) of the DMP Order depending on the factual circumstances. In that case, the appellant had been deprived of the opportunity to input on an issue which it was obvious the appellant would have wanted to comment on and so the decision was invalid. 

Mr Justice Kerr allowed the late application given the proximity to the factual position arising from the third and fourth grounds, the “flagrant” nature of the breach and the fact it would be “unattractive” for a public authority to avoid accountability in such circumstances. 

On the facts, the breach rendered the planning permission invalid. Mr Justice Kerr rejected the Defendant’s argument that it was highly likely the outcome would not have been substantially different had the breach not occurred. The planning committee had been divided, with objectors emphasising insufficient information around gaps to be dealt with at the reserved matters stage. Thus, the draft Section 106 agreement could have materially influenced the committee’s deliberations such as prompting them to ask for updated biodiversity assessments or an improved agreement addressing concerns. 

This was compounded further by a “serious want of transparency in the period leading to the decision challenged,” during which the contents of the draft agreement were shielded from public view, undermining the statutory purpose of public participation.

Conclusion

In light of the decision in Chidswell, local planning authorities may seek to reassess their procedures concerning publication of Section 106 agreements. Whilst there may be circumstances in which delayed publication is defensible (such as where the agreement’s contents are already publicly available) the risk of legal challenge is now clearly established. 

A draft of the Section 106 agreement needs to be placed on the public register for a reasonable period of time prior to the grant of planning permission.  What is a reasonable period of time will depend on the Section 106 agreement and its obligations, but as a general rule publishing the draft a week prior to the committee meeting seems to be generally acceptable. Publishing at the eleventh hour is unlikely to satisfy the legal requirement for transparency and public engagement and would make the planning application subject to challenge causing delay and cost to the applicant.