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

A failure to publish a proposed or completed planning obligation as required by article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 does not automatically invalidate a later planning permission. The court must examine the provision’s purpose and the consequences of non-compliance.

Permission will be unlawful where the breach substantially defeats the public’s opportunity to know and comment upon a material obligation. A remedy cannot be withheld under section 31(2A) of the Senior Courts Act 1981 unless the court can conclude that a substantially different outcome was highly unlikely. The court must assess the effect of the error on the authority’s decision-making and must not substitute its own planning assessment.

The Council granted permission for a substantial housing development after the developer entered a section 106 agreement requiring a financial contribution towards highway improvements. Neither the proposed agreement nor the completed agreement was placed on the planning register before permission was granted.

Greenfields sought judicial review, also alleging failures to consider material matters, apparent bias by the acting committee chairman and a procedural irregularity concerning the exclusion of a councillor from an earlier meeting. In [2024] EWHC 2107 (Admin), the High Court refused permission on the publication and material-consideration grounds and dismissed the remaining claims.

The central issues on appeal were whether the publication breach invalidated the planning permission, whether relief should nevertheless be refused, and whether the other alleged defects affected the later resolution and permission.

1. Appeal allowed on the publication ground only. The failure to place the proposed or completed section 106 agreement on the planning register rendered the planning permission unlawful. The remaining grounds of appeal were dismissed. The appropriate consequence was provisionally identified as quashing the permission while leaving the committee’s resolution approving its grant unaffected.

2. Where an earlier planning resolution has a material connection with the eventual permission, it is not a distinct administrative step. Applying R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23, time runs from the grant of permission. The challenge to conduct connected with the earlier meeting was therefore timely.

3. Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires publication so that the public can know and comment upon the proposed or agreed planning obligation. It does not create a statutory consultation duty or reopen the wider planning merits. Applying R v Soneji [2005] UKHL 49 and A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, non-compliance does not invariably invalidate a subsequent decision. Its consequences must be evaluated in light of the provision’s purpose and the particular facts.

   There was little or no substantive compliance. Publishing heads of terms which disclosed only that a contribution would be agreed did not reveal its amount. The breach deprived an interested objector of a likely opportunity to question whether the contribution adequately funded the necessary works.

4. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. The evidence contained materially different estimates of the highway costs and did not establish how the authority fixed the contribution. The court could not conclude that a substantially different outcome was highly unlikely without impermissibly taking the planning decision itself.

5. The lapse of permission for another development was relevant, if at all, to the contribution negotiated by officers rather than the committee’s decision whether to approve this development. Nor did approval depend upon completion of a formal review of highway schemes. The material-consideration ground was unarguable.

6. The fair-minded and informed observer would not find a real possibility of bias. The chairman’s approach to a non-member’s request to address the committee was consistent with the Council’s speaking rules.

7. Any earlier procedural error in excluding a councillor had been overtaken by events. He attended the later meeting, explained his changed position and voted for approval. The alleged defect therefore did not affect the later resolution.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 488, allowed the appeal on the failure to publish the section 106 agreement, dismissed the other grounds and provisionally concluded that the planning permission should be quashed.

2. High Court, Administrative Court: In [2024] EWHC 2107 (Admin), refused permission on the publication and material-consideration grounds, granted permission but dismissed the apparent-bias and procedural-irregularity grounds, and upheld the planning permission.