Failure to correctly publish a Section 106 Agreement: no excuses!

Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (Article 40) provides that a local planning authority’s planning register must contain a copy of any planning obligation proposed or entered into in connection with any planning application.
 
This is not a new requirement, but compliance with it over the years has been patchy. Where planning obligations are published, practices vary in terms of what is published and when, and LPAs have fallen into avoidable traps. 

Within the last six months, two judgements have made it clear that there really are no excuses, and there will be little leniency from the courts for failing to properly publicise planning obligations.

Trap 1 - Failure to publish a detailed draft Agreement

In Greenfields (IOW) Limited v Isle of White Council [2025] EWCA Civ 488, the failure related to publishing suitably detailed drafts of the planning obligations. The LPA argued that the publication of the heads of terms amounted to compliance with their statutory duty.

On the facts, the court considered that there was little to no compliance with the requirements of Article 40(3). The consequence of this non-compliance was that the public were not given the opportunity to comment on the financial contributions contained in the S.106 Agreement. The court found that the overwhelming likelihood was that residents would have commented on the financial contributions within the S.106 Agreement, should they have been given the chance.

Despite the breach, the council pursued a Simplex argument to the effect that planning permission would have been granted whether or not the agreement was placed on the planning register. However, the court rejected this, and concluded that the financial contributions in the S.106 Agreement may well have been different had it been consulted upon. 

Trap 2 - Late publication of planning obligations 

The case of Chidswell Action Group, R (On the Application Of) v Kirklees Council [2025] EWHC 2256 (Admin), concerned an outline planning permission for around 181 homes within land allocated for residential development in the LPA’s 2019 Local Plan. 

The claimant challenged the consent on several grounds, including the failure to publish the section 106 agreement in accordance with Article 40(3)(b) of the 2015 DMP Order. The claimant argued that the  Court of Appeal’s reasoning and decision in Greenfields (as set out above) supported the same outcome in this case.

Despite multiple requests for publication, planning permission was granted on 23 October 2024, with publication of the S.106 Agreement only following after the decision was issued.

The court quashed the decision to grant planning permission, concluding that there had been a significant lack of transparency while the developer and LPA conducted negotiations. It held that the draft should have been placed on the appropriate planning portal ‘well before’ 23 October 2024, to provide sufficient time for public comment. 

So, what does this mean in practice? 

Depriving the public of a fair opportunity to comment is fertile ground for judicial challenges. It is not always necessary to publish every draft of a S. 106 Agreement, and this would be impractical. In  most circumstances, publication of the final draft will suffice. However, where a subsequent draft departs materially from earlier versions; or from the heads of terms set out in the committee report, then publication would be sensible. 

There is no specified minimum period between publication and the grant of permission but 5-7 working days is likely to be sufficient in most circumstances. The reality is that It usually takes longer than this for engrossments to be signed, sealed and completed, and so this is unlikely to cause delay in most cases.

The key takeaways here are: 

1. For local planning authorities: always publish the final draft planning agreement before permission is issued, allowing reasonable period for public review.
2. For developers: this is not just an issue for the LPA. It’s your permission at stake and so make sure that the LPA has satisfied the duty!

The courts are clear that failure to comply with these requirements denies communities a fair chance to comment. Transparency is not option; it is a legal necessity. 

This insight is authored by Paralegal, Morgan Moffett and Trainee Solicitor, Matt Clover.