DMPO

The requirement provided by Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy of any planning obligation or section 278 agreement proposed or entered into in connection with the application” is a requirement often overlooked by local planning authorities. 

The case

The recent decision of the Court of Appeal in R (Greenfield (IOW) Limited v Isle of Wight Council highlights why it is crucial to ensure that any related proposed or completed s106 agreement has been placed on the planning register before planning permission is issued.

The challenge in this case was to the Isle of Wight Council’s decision to grant planning permission for a development comprising 473 dwellings and related development, in circumstances where the proposed or completed agreement had not been placed on the planning register before planning permission was issued. 

The planning committee’s resolution was to grant planning permission subject to the prior completion of a section 106 agreement. Whilst the committee report provided the heads of terms, which included the payment of a financial contribution, to be paid by the applicant for road junction improvement works, the amount was unspecified.  

At the time of the committee meeting, the applicant had indicated that the cost of the road improvement works could be in the region of £777,000. The section 106 agreement, subsequently negotiated and completed, provided for a contribution of £406,359. 

The Court of Appeal held that the purpose of art.40(3)(b) was to ensure that certain documents must be placed on the planning register before an application for planning permission was disposed of, including a copy of "any planning obligation", which included a s.106 agreement or a unilateral undertaking. 

The obligation should not be regarded as an obligation to consult. The purpose of publication was to enable members of the public to know the terms of a proposed or agreed planning obligation and to enable them to comment on it. The planning authority had failed to comply with that obligation. 

The Court went on to state that it was necessary to assess the consequences of non-compliance on the facts of each case in order to determine whether the failure to comply would result in the invalidity of the decision taken following such a failure. The Court took the view that in this case, there had been little or no compliance with the purpose underlying art.40(3). The non-compliance meant that the amount of the financial contribution to be paid by the applicant in the s.106 agreement was not publicised before the planning permission was granted. 

The officer's report had referred to the heads of terms, but only informed the reader that a financial contribution would need to be agreed. The court held that this did not amount to substantial compliance. The Court expressed the view that the overwhelming likelihood was that the appellant would have commented on the s.106 agreement before planning permission was granted. The Court of Appeal has confirmed that, on the facts, the consequence of this non-compliance is that the planning permission should be quashed.

So, what should local planning authorities take from the judgment? 

It is our view that local planning authorities must ensure that a copy of the final agreed draft of the section 106 agreement or unilateral undertaking is published on their planning register before the document is completed and the permission is issued. It should be noted that the duty is to publish the document on the register rather than to undertake further consultation, and there is no minimum period specified between publishing the document on the planning register and issuing the permission. It may, however, be prudent in our view to allow at least a few days. This could be the period where the document is being engrossed and is doing the rounds for signing and sealing by the parties. 

Finally, it is our view that it is not necessary to publish successive drafts of a planning obligation on the register. It is sufficient to publish on the register the version of the agreement that the authority intends to enter into or (in the case of a unilateral undertaking intends to rely on) as a basis for granting planning permission.