Planning permission ruled unlawful in Court of Appeal after Council failed to publish section 106 agreement

In Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488, the Court of Appeal found that the Isle of Wight Council (“the Council”) did not comply with its statutory requirement as the local planning authority to publish a section 106 agreement online prior to granting the associated planning permission. This rendered unlawful the Council’s decision to grant the permission authorising a mixed-use development.

Because in this situation the appellant would likely have commented on the agreement if it had been published, the Court of Appeal concluded that the permission should be quashed.

Factual background

The Council had resolved in 2021 to grant permission for a proposed development in Ryde, which development included 473 houses, a surgery and other buildings. This required the Council and the developer to negotiate an agreement under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”) to include, amongst other things, an appropriate financial contribution toward the cost of related highway works.

The s.106 agreement was completed and the Council granted the planning permission in 2023 but without having published the agreement on its planning register, as required by article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 ("the Order").

Greenfields (IOW) Ltd. was unsuccessful in its initial judicial review of the Council’s planning permission in the High Court, where they argued that (among other grounds) the Council’s failure to place the s.106 agreement on its planning register in accordance with the Order made the permission unlawful.

Greenfields appealed the High Court’s decision in the Court of Appeal, again based primarily on the planning permission being unlawful as a result of the Council’s non-compliance with article 40(3) of the Order. Greenfields’ other grounds of appeal related to the Council’s lack of regard for material considerations and alleged biases and procedural irregularities within its planning committee.

The decision

The Court of Appeal overturned the High Court’s decision and considered that, in this situation, the Council’s failure to publish the s.106 agreement on its planning register before granting the related planning permission rendered that permission unlawful.

It was not disputed that the Council failed to update its register with the s.106 agreement prior to granting the planning permission, nor was it in dispute before either the High Court or the Court of Appeal that such non-compliance constituted a breach of the Order. The Court of Appeal considered the relevant case law when concluding that non-compliance would not necessarily invalidate a planning permission in every case. However, it did have that effect here because the appellant was not given the opportunity before the grant of permission to comment on the agreement’s provisions relating to the developer’s financial contributions, and that it would have been likely to do so before the permission was granted.

Although the Council’s planning decision was unlawful and the permission was therefore quashed, the Council’s resolution to approve the planning permission was unaffected by the Court of Appeal’s decision because article 40(3)(b)of the Order does not require publication on the planning register prior to a committee resolution.

The Court of Appeal dismissed the appellant’s other grounds of appeal.

TLT Comment

This case confirms that local planning authorities must publish planning obligations on their planning register prior to granting planning permission or run the risk that the relevant planning permission is quashed.

Although this decision concerned a s.106 agreement, other planning obligations such as unilateral undertakings and agreements made under section 278 of the Highways Act 1980, must be published on planning registers in the same way.

Katherine Evans said: “Although this is administratively inconvenient and the Court did not express a view on how long any planning obligation would need to be published on a register prior to a planning permission being granted, article 40(3)(b) does need to be complied with and in order to avoid any risk, those involved in the process of the grant of planning permission must ensure that planning obligations are published for a reasonable period prior to the actual issue of the relevant planning permission.”

TLT’s Future Energy Planning and Environment team has extensive experience in drafting and negotiating planning obligations and can advise on statutory responsibilities and best practice for parties making or deciding applications for planning permission under the 1990 Act.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.