The recent court rulings in Greenfields (IOW) Ltd, R (On the Application Of) v Isle of Wight Council & Anor [2025] EWCA Civ 488 and Chidswell Action Group, R (On the Application Of) v Kirklees Council [2025] EWHC 2256 (Admin) (September 4th 2025) have reaffirmed the procedural requirement for local planning authorities (LPAs) to publish draft planning obligations prior to granting planning permission.
This article explores the implications for developers, the risks posed by non-compliance, and practical measures to mitigate exposure.
Introduction
Section 106 agreements are a mechanism within the planning control framework. They are used to mitigate the site-specific impact of a development (such as infrastructure, affordable housing, community facilities). However, the procedural requirements embedded in the Town and Country Planning (Development Management Procedure) (England) Order) 2015 (DMPO) surrounding their publication are often overlooked. Such requirements are premised on the need for transparency and on encouraging public participation and scrutiny – key elements of our planning system.
The decisions in Greenfields and Chidswell demonstrate that the courts are increasingly scrutinising failures to publish draft section 106 agreements prior to the grant of planning permission. Developers must be wary that such failures carry a risk of legal challenge and the planning permission being quashed.
Case Law Overview: What Went Wrong?
Greenfields (IOW) Ltd v Isle of Wight Council
• The Isle of Wight Council granted permission for 473 homes but failed to publish the draft section 106 agreement before issuing the decision notice.
• The Court of Appeal held this was a breach of Article 40(3)(b) of the DMPO.
• The failure invalidated the planning permission because it deprived the public of the opportunity to scrutinise and comment on the obligations.
Chidswell Action Group v Kirklees Council
• Kirklees Council granted outline permission for 181 homes, but published the section 106 agreement only after the decision notice.
• The High Court found that this late publication caused real prejudice, especially to consultees such as the Yorkshire Wildlife Trust, who were denied the chance to comment on biodiversity obligations.
• The permission was quashed.
Legal and Practical Implications for Developers
These rulings serve as a clear reminder: a draft section 106 agreement must be published on the local planning authority’s (LPA) public register before the section 106 agreement is completed and planning permission is granted.
This requirement has been in place for many years and, in theory, should be routinely met by LPAs. However, in practice, this is often not the case. Draft section 106 agreements are not consistently made available on planning portals, and in some instances, final copies are never uploaded.
1. Planning permissions are vulnerable
• If the LPA doesn’t publish the draft agreement in time, there is increased risk of the planning permission being found invalid or quashed, alongside increased risk of judicial review challenge.
• Developers risk delays, costs, and reputational damage if permissions are overturned.
2. Heads of terms are not enough
• Following the decision in Greenfields, it is not safe to rely purely on publishing the heads of terms for the section 106 agreement in the planning officer’s report to the planning committee to sufficiently constitute compliance with the requirement.
• A full draft agreement must be published.
3. Due diligence is essential
• Developers can check the LPA’s public register to ensure compliance, as well as ask the LPA to confirm publication.
• During negotiations, remind the LPA of the requirement to publish to ensure the LPA has factored in the time needed to publish.
What Constitutes a “Reasonable Period” for Publication?
Neither the DMPO nor the courts specify a fixed timeframe. Publication of the draft section 106 agreement should occur sufficiently in advance of the decision to allow for public scrutiny. As a general rule, publishing the draft section 106 agreement a full working week prior to the planning committee meeting would seem to be acceptable.
Publication after the decision notice is too late
Developer Strategy and Risk Mitigation
To help safeguard planning permissions, developers can adopt the following practices:
• Monitor the LPA’s public planning register regularly for draft obligations
• Request confirmation of publication timelines from the LPA and ask the LPA to confirm publication
• Engage legal advisors early in the planning process
• Document all communications with the LPA regarding section 106 obligations
• Include publication milestones in project planning and legal agreements
Conclusion
The Greenfields and Chidswell decisions serve as a critical reminder that procedural compliance is not optional. Developers must be proactive in ensuring LPAs meet their statutory duties under the DMPO. Failure to do so exposes projects to legal challenge, delay, and financial loss.
For developers, vigilance is essential. Ensuring that LPAs follow proper procedures must now form a routine part of legal and project risk management. With planning law under increasing scrutiny, early engagement and procedural discipline are the best defences against costly setbacks.
