The recent Court of Appeal case of the King (on Application of Green Fields (IOW) Limited) and the Isle of Wight Council and Westbridge Village [2025] is a salutary reminder to local planning authorities (LPA) regarding their legal duty to publish planning obligations under Development Management Procedure Order 2015 (DMPO 2015).
Section 40(3) of the DMPO 2015 states that a LPA must publish planning obligations on its portal. In the above case the LPA failed to publish the planning obligations on the planning portal and, as a result, the Court quashed the planning permission.
The LPAs failure to comply with its obligations meant that the amount of the financial contributions in the S106 Agreement was not published or known until planning permission was granted – this was an important consideration in this case as there were well known concerns from the objectors about the impact of the proposed development on the highways network and on how any mitigation costs would be funded. The LPA had reported to committee that highway mitigation was required and that a financial contribution would be sought but what it did not state was the amount of the financial contribution.
The Court found that consequences of non compliance was to deprive the objector of the opportunity to comment on the contribution. Lewis LJ held that it was “obvious” that the objectors might have wanted to comment on the amount particularly because on the facts of this case, the agreed contribution in the finalised S106 Agreement fell significantly short of the objectors own estimate of costs.
Prior to this Court of Appeal case ( and this was one of the grounds the LPA failed on in the Court of Appeal ) the courts had found that the publication of the S106 Heads of Terms in a committee report achieved compliance with Article 40(3) in “substance if not in form” (the King (on the Application of Payton Davis) -v- Oxford City Council, M K Dogar, Oxford City Housing (Development) Limited and Oxford County Council (2023) ) but in this case , as previously stated ,the amount of the financial contribution was not reported to committee.
This is not a new duty, it has been in place since 2015 and the purpose of publishing the obligations on the portal is to enable members of the public to know the terms of a proposed or agreed planning obligation and to comment should they choose to do so. It is not a statutory duty to consult but rather a duty to include certain specified information on a publicly available planning register.
There is no guidance on what exactly has to be placed on the portal and there is no requirement to put numerous drafts of Section 106 agreements on the portal and, indeed, we consider that to publish various drafts before they are in a final state could cause more confusion for the public. We consider that LPAs should include clear heads of terms in the committee report and any Section 106 agreement should clearly reflect those heads of terms as reported to Committee. At this stage it would be advisable for LPAs to publish the final draft, or engrossed draft Section 106 agreements, on the portal with sufficient time between publication and completion of the S106 agreement and issuing of the decision notice to allow for any members of the public to make comments should they so wish and, also, with sufficient time for the LPA to consider those comments.
In real terms, if the final draft of the Section 106 agreement has complied with the detailed heads of terms(including the amount of financial contributions) as reported in the committee report then there should not be any prejudice to any third parties.
This is not a new requirement and each case will always be considered on its own facts but it is a reminder to LPAs of their duty to publish under the DMPO 2015.