The ability to view a S106 agreement

The recent court of appeal decision in R. (on the application of Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488 (IOW) will have sent shivers down the collective spines of council planning departments in England.

Article 40(3)(b) Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) requires "a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application" to be placed on the register when the application is "not finally disposed of". This means that any relevant S106 agreement/Unilateral Undertaking (UU) needs replaced on the register (public access) before permission is granted.  This has not been followed by all planning departments and some place S106 agreements on the file for public access after permission has been granted.  Indeed, some councils do not place them on public access at all!

The specific facts and circumstances of the IOW case are not that important, but a few are relevant: 

• There was a committee report which contained a summary of what was required by the section 106 agreement.
• The officers report initially stated that there would be a "financial contribution towards the provision of" certain highway works.  An update was later provided by officers to say that this would be "in the region of £777,000".
• The final section106 agreement required the payment of £406,359.

The council argued that the appellant did not need to see the agreement before permission was granted as there were heads in the committee report.

The court decided that the heads in the committee report were not sufficient and the appellant would have questioned the disparity in the contribution sizes.  They were therefore prejudiced by not being able to see the section 106 agreement before the permission was granted.  The grant of permission was, therefore, quashed.

What should a council do?

1. a draft of any section106 agreement/UU should be placed on public access in plenty of time prior to the grant of planning permission.
2. Provided (a) is followed, the completed section106 should be available on public access before the grant of planning permission.  There is no set time given by the judgement so step (a) gives any party interested time to check.

S278 Agreements

The IOW case did not concern S278 agreements, but the same provision also applies to them.  Such agreements are often not entered into until long after the grant of planning permission.  We suggest that such agreements (when they are finally entered into) be placed on public access as well even though they have not always been a reason why planning permission has been granted.

If you would like further information or to discuss this please contact Jade Chalmers or Bob Sadler.