Chidswell Action Group, R (on the application of) v Kirklees Council

Failure to publish a proposed planning obligation before a planning permission is issued is not automatically fatal. Its legal consequence depends on the factual impact of the breach and the opportunity lost by members of the public to comment.

Where non-publication prevents informed comment on material safeguards, and there is a real possibility that public and committee consideration would have produced a different result or improved obligations, the permission may be invalid and quashed. Planning conditions must be read objectively and as a whole. Later planning obligations may cure an identified defect, but they do not retrospectively cure the procedural unfairness caused by withholding the draft obligation from public scrutiny.

The claimant sought judicial review of Kirklees Council’s grant of outline planning permission for up to 181 dwellings at Heybeck Lane, Dewsbury. Permission was granted on two grounds concerning ecological surveys, ecological conditions and biodiversity net gain. The claimant later applied, out of time, to add a fifth ground alleging breach of article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 by failing to publish the section 106 agreement before the permission was issued.

After the claim was issued, the council and developer entered into two supplemental planning obligations addressing ecological surveys, enabling works and the biodiversity baseline. The central issues were whether the existing grounds remained justiciable, whether the fifth ground should be added, and whether the non-publication affected the validity of the permission.

1. Third and fourth grounds. Conditions 1 and 24, read with the original section 106 agreement and the first supplemental obligation, permitted enabling works before the necessary ecological surveys had been obtained and approved. The second supplemental obligation adequately addressed the timing defect. The third ground was therefore well-founded when the permission was issued but became academic. The fourth ground also did not justify relief. The statutory biodiversity baseline had to be calculated by reference to the planning application date in July 2020, and clause 3.3 introduced by the second supplemental obligation provided a sufficient safeguard against artificially lowering that baseline. The court did not determine either ground because no special reason justified deciding academic issues.
2. Permission to amend. The fifth ground was late but properly arguable. The court exercised its discretion to permit it. The claimant had explained the delay, the application followed the Court of Appeal’s decision in Greenfields, and the defendants suffered no procedural prejudice. The public body’s admitted breach and the importance of transparency also weighed in favour of allowing the amendment.
3. Non-publication. Article 40(3)(b) required publication of the draft section 106 agreement before the planning permission was issued. Publication would have enabled informed comment on biodiversity safeguards, the timing of ecological surveys and the achievability of 10% biodiversity net gain. There was a strong possibility that the matter would have returned to the committee and that the obligations would have been improved. The claimant suffered real prejudice because it was denied merits-based participation and was confined to judicial review after the event.
4. Disposition. The failure to publish was significant. The planning permission, issued in breach of article 40(3)(b), was invalid and was quashed. The claimant was awarded costs against the council capped at £35,000, with no other order as to costs.

First-instance judicial review. The judgment records the Court of Appeal’s decision in R (Greenfields (IOW) Ltd) v Isle of Wight Council, [2025] EWCA Civ 488, which reversed the earlier High Court decision on the effect of non-publication of a section 106 agreement.