Tripwire In Greenfields

This is the tripwire: Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application.”

The requirement should not be news for any local planning authority but it is often honoured in the breach. Until now it has not formed a basis for the quashing of a planning permission. But that could well be the outcome, subject to the court’s final order, of the Court of Appeal’s judgment yesterday (16 April 2025) in R (Greenfield (IOW) Limited v Isle of Wight Council , which concerned a challenge to Isle of Wight Council’s decision to grant planning permission for a development comprising 473 dwellings and related development, in circumstances where the proposed or completed agreement had not been placed on the planning register before planning permission was issued. One can see the problem arising from the particular facts:  the planning committee’s resolution to grant planning permission was subject to prior completion of a section 106 agreement, one of the heads of terms of which was to be a financial contribution (amount unspecified although at the time of the committee the developer had indicated that the costs could be in the region of £777,000) but then only when planning permission had been granted did it transpire that the section 106 agreement, subsequently negotiated, provided for a contribution of £406,359. 

The court made it clear that the implications of failure to comply with the duty are fact-specific. Here the heads of terms in the committee report were insufficient to inform the reader as to the nature of the contribution (namely its quantum) and the overwhelming evidence was that the claimant and others would have wished to make representations had they known what figure was proposed. Whilst the court found that the claimant had not made any request of the council a copy of the proposed obligation, it was accepted that they had searched the online planning register for sight of it. Lastly, the court could not conclude that even if the duty had been complied with it would have been highly likely that the outcome would have been the same. 

At first instance HHJ Jarman KC had found this ground of challenge to be unarguable. Ah the uncertain joys of litigation. 

What practically should we take from the judgment? These are just my own personal thoughts:

• It is prudent for a local planning authority to place a copy of the draft and/or completed planning obligation (i.e. section 106 agreement or unilateral undertaking) on its planning register before the document is completed and permission issued. 
• This is particularly the case where the substantive contents of the agreement or undertaking are not already summarised in an officer’s report (and, if relevant planning committee resolution) which is in the public domain  
• The duty is to put the document on the register rather than to undertake further consultation and there is no minimum period specified as between placing the document on the planning register and issuing the permission, although in my view it would be sensible to allow at least a few days (e.g. when the document is probably in any event being engrossed and doing the rounds for execution – complying with this duty should not be an excuse for further delay in the process).
•  The question often arises as to whether successive drafts of a planning obligation need to be put on the register. What, after all, is the version of the document which is, in the vague words of the statutory duty, “proposed or entered into“? In my view successive drafts certainly do not need to be put on the register and it is sufficient to place on the register the version that the authority intends to enter into or (in the case of a unilateral undertaking intends to rely on) as a basis for granting planning permission. 

None of this should be news, but local planning authority practice to date has often been rather more laissez faire, perhaps partly because the courts have previously declined to quash permissions in not dissimilar circumstances (see for instance R (Police and Crime Commissioner for Leicestershire) v Blaby District Council  (Foskett J, 27 May 2014) and maybe partly because, well, this is a statutory duty, tucked away in the Development Management Procedure Order, that it can be easy to overlook.

Happy Easter. 

Simon Ricketts, 17 April 2025

Personal views, et cetera