Overview 

The Court of Appeal’s recent decision in the case of R (Greenfields (IOW) Ltd) v Isle of Wight Council and another [2025] confirmed that planning permission granted in breach of Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO 2015) was unlawful. The decision confirms the consequences of failing to ensure that proposed planning obligations are published on the local planning register before planning permission is issued. 

Background 

In 2023, the Isle of Wight Council resolved to grant planning permission for a major development comprising of 473 dwellings and associated infrastructure. The application was approved by the committee subject to completion of a Section 106 Agreement. However, a judicial review was brought by Greenfields (IOW) Ltd on the basis that the proposed Section 106 Agreement was not made available on the Council’s planning portal prior to the grant of permission. 

They argued that the absence of the agreement on the register prevented meaningful public scrutiny and engagement, particularly focusing on the financial contributions intended to mitigate highway impacts. 

The Legal Issue 

Under Article 40(3)(b) of the DMPO 2015, a local planning authority must include on its planning register “a copy of any planning obligation or Section 278 Agreement proposed or entered into in connection with the application” 

The central issue before the Court was whether a failure to comply with this rendered the decision to grant planning permission invalid. 

The judgment 

At paragraphs 55 to 70 of the judgment, the Court of Appeal analysed the legal consequences of non-compliance with Article 40(3)(b). Although the provision does not expressly impose a public consultation requirement, the Court held that the obligation to publish proposed agreements before a decision is issued is fundamental to the procedural process. 

The judges concluded that the heads of terms that were provided at the committee stage did not fulfil the Article 40(3)(b) requirement. They lacked key details, including the specific amount of the highway contribution, and therefore did not amount to substantial compliance. The claimant had been monitoring the Council’s planning portal and was actively seeking to review the draft agreement, but was denied the opportunity to do so before the planning permission was granted. 

Drawing on the principles in the case of R v Soneji [2005] and A1 Properties Ltd v Tudor Studios RTM Co Ltd [2024], the Court considered whether the breach caused sufficient prejudice to invalidate the decision. It concluded that the failure to publish the proposed agreement prevented the claimant from making informed representations on a material planning consideration and thus resulted in unlawful decision-making. The permission was therefore quashed. 

Practical Implications 

This judgment offers key practical implications for planning authorities in four main areas:  

1. Statutory compliance is critical: Local planning authorities must ensure that proposed Section 106 Agreements are published on the planning register prior to issuing permission, in line with Article 40(3)(b) DMPO 2015 and failing to do so can invalidate a decision. 
2. Heads of terms are insufficient: Providing a summary or outline at the committee does not meet the requirements to publish a full draft agreement. The actual or proposed agreement must be made in detail, especially where financial contributions are involved. 
3. Consultation is not required, but participation is protection: While Article 40(3)(b) does not create a formal duty to consult, the Court affirmed that interested parties must be afforded a fair opportunity to make comments. If the obligation is not public, meaningful engagement is impossible. 
4. Consequences depend on prejudice: The Court emphasised that not all breaches of Article 40(3)(b) will lead to invalidity. However, where compliance prevents a party from reviewing or responding to the planning obligations, a claim for judicial review may succeed. 

Conclusion 

This case is a reminder of the legal weight carried by procedural safeguards in planning law. Authorities must not treat publication duties as technical formalities; compliance with article 40(3)(b) is necessary to ensure transparency and lawful decision-making. For developers and local authorities, the judgment reinforces the importance of ensuring that all proposed planning obligations are publicly available before permission is granted. 

How Capsticks can help 

Capsticks aims to be the firm of choice for organisations working within the local government sector, offering a full range of services. Our specialist local government advice is cost-effective and strategic, complemented by practical knowledge of your daily challenges. We are experts on all aspects of planning law, including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and all general planning law matters.   

If you have any queries around what's discussed in this insight and the impact on your organisation, please speak to Suzanne Smith, Jennifer Eng or any of your contacts at Capsticks to find out more about how we can help.