The recent Court of Appeal judgment issued on 16 April 2025 in Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488 has generated a lot of legal discourse in the days since it was published. The decision of the Court to overturn the High Court decision will likely result in a procedural change for Councils in respect of when they publish section 106 agreements on their websites.
For most Councils, it has been general practice to complete Section 106 Agreements and issue planning permissions on the same day. It is only after completion that Councils tended to publish the completed Section 106 Agreement on their website, and this is far from consistent.
However, the Court of Appeal held that the failure of the Isle of Wight Council to publish the section 106 prior to the grant of planning permission rendered the decision to grant planning permission unlawful as it failed to allow the public the opportunity to note the terms of the planning obligation and comment on it. The Court considered that this was the intention of Parliament when requiring [publication] under Article 40(3) of the Town and Country Planning (Development Management Procedure)(England) Order 2015.
The Court also refused to grant relief on the basis that the outcome would not have been substantially different if the Council had published the s106 prior to granting the permission. In this matter, although the Officers Report did contain the heads of terms for the section 106 agreement, it is relevant that the report did not specifically set out how much the contribution would be only that one would be requested. The Court concluded that it was not possible therefore to determine what the outcome might have been if the cost of contribution had been known as a result of publishing the draft Section 106 Agreement and giving the public the opportunity to comment.
The decision is a timely reminder of the need to comply with the requirements of DMPO to ensure that the planning register is up to date and the public have the necessary opportunity to comment on all aspects of the planning proposal. Whilst this is not new, it has in practice often been overlooked particularly bearing in mind that the duty is to put the document on the register, rather than consult on the terms.
Practically speaking, it would be prudent to ensure that heads of terms for a Section 106 Agreement, including any contribution sums, are published on the planning register, whether in an officers’ report or if necessary at a later date, and also to ensure that Council’s upload a copy of the final draft of the Section 106 Agreement. If this is done at the same time that the document is being engrossed and circulated for signature this should not result in any delay to the issue of the planning permission.
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