Greenfields (IOW) Limited (R, on the application of) v Isle of Wight Council & Anor

The Court of Appeal allowed the appeal in part. It held that the Council breached article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 by failing to place a proposed or final section 106 planning obligation on the planning register before issuing planning permission, and that breach rendered the decision to issue permission on 4 August 2023 unlawful. The court applied the Soneji/A1 Properties approach to assess consequences of procedural non-compliance and concluded that article 40(3)(b) is not a rule of automatic invalidity but requires a fact‑specific inquiry into purpose and prejudice.

The court rejected the appellant’s other grounds: (i) there was no failure to have regard to material considerations (including the lapse of the Pennyfeathers outline permission and the state of the highways review); (ii) the allegations of apparent bias against the chair (Councillor Brodie) did not meet the Porter fair‑minded and informed observer test; and (iii) although exclusion of a councillor from the July 2021 meeting was a procedural irregularity, that matter was rendered academic by later events. The court therefore quashed the decision issuing permission to enable the Council to remedy the publication default and invite comments on the section 106 agreement.

Background and procedural posture: Westridge Village Limited applied for outline planning permission for a large residential development in Ryde, Isle of Wight. The Council’s planning committee resolved to grant permission in July 2021 subject to a section 106 agreement; the matter returned to committee in April 2023 and planning permission was issued on 4 August 2023 after finalising a section 106 agreement providing a highways contribution of £406,359. Greenfields sought judicial review of the decision to grant permission; HHJ Jarman KC (Administrative Court) considered a rolled‑up permission and claim hearing and refused relief on several grounds but granted permission on others and dismissed the substantive claim. Greenfields obtained permission to appeal to the Court of Appeal.

Nature of the claim and relief sought: judicial review seeking quashing of the Council’s decision to issue planning permission on 4 August 2023. Primary complaints were: (1) failure to publish the proposed or final section 106 agreement on the planning register (article 40(3)(b) DMPO 2015); (2) failure to have regard to material considerations or misleading officers’ advice concerning highways mitigation and the effect of the lapse of the Pennyfeathers permission; (3) apparent bias by the acting planning chair; and (4) procedural irregularity by excluding a councillor from the July 2021 committee meeting.

Issues for determination:

• Whether the time for bringing challenges ran from committee resolution or from grant of permission (Burkett relied upon).
• Whether failure to publish the section 106 agreement rendered the grant of permission invalid and, if so, whether relief should nevertheless be refused under section 31 of the Senior Courts Act 1981 because it was highly likely the outcome would not have been substantially different.
• Whether the planning committee failed to take account of material considerations (including the lapse of Pennyfeathers and absence of a highways review) when reconsidering the application in April 2023.
• Whether the chair’s conduct gave rise to a real possibility of bias.
• Whether exclusion of Councillor Price in July 2021 vitiated later decisions.

Court’s reasoning and findings: The Court of Appeal held that the time for bringing challenge ran from the grant of permission on 4 August 2023 because the July 2021 resolution remained a material part of the decision process and was not a distinct, independent step (Burkett applied). On article 40(3)(b), the court applied the Soneji/A1 Properties framework: the article’s purpose is to inform the public of proposed or entered planning obligations so they may comment on their subject matter; it is not necessarily a consultation duty, and non‑publication does not automatically invalidate a subsequent decision. However, in this case there was little or no compliance with the article’s purpose because the financial contribution fixed in the section 106 was not publicised before grant and interested local residents (including Greenfields’ members) were likely to have commented. The court therefore found the failure rendered the decision unlawful. On remedies, the court declined to refuse relief under s.31(2A)/(3C) because the respondent’s evidence did not permit the court to conclude it was highly likely the outcome would not have been substantially different had the agreement been published; there were conflicting cost figures and an evidential gap as to how contributions were calculated.

The court dismissed the remaining grounds: the lapse of Pennyfeathers and the highways review status were not matters that required the committee to withhold permission in April 2023 (those issues related to s.106 payments and officer implementation rather than to the planning merits), the Porter test for apparent bias was not met on the facts, and the exclusion of Councillor Price was academic because he attended and voted in April 2023 and explained his changed position. The court additionally commented on public authorities’ duty of candour and the need for clear evidential disclosure of decision‑making rationales when seeking to justify outcomes in judicial review.

Appeal allowed in part. The Court of Appeal quashed the decision to issue planning permission on 4 August 2023 because the Council failed to comply with article 40(3)(b) DMPO 2015 by not placing the proposed or final section 106 obligation on the planning register prior to grant; on the facts that failure deprived interested local residents of a realistic opportunity to comment on the financial contribution and so rendered the decision unlawful. The court refused to withhold remedy under section 31 of the Senior Courts Act 1981 because the evidence did not show it was highly likely the outcome would not have been substantially different. The other grounds (failure to take into account material considerations, apparent bias, and procedural irregularity as to Councillor Price) were dismissed as not made out or academic.

Appeal from the Administrative Court (HHJ Jarman KC) [2024] EWHC 2107 (Admin); this judgment is the Court of Appeal’s determination ([2025] EWCA Civ 488).