Chidswell: High Court highlights the importance of publishing Section 106 agreements before issuing permission
A recent High Court decision underscores an important procedural requirement for both developers and local authorities.
Background
The High Court’s recent decision in R (on the application of Chidswell Action Group) v Kirklees Council [2025] EWHC 2256 (Admin) (Chidswell) underscores an important procedural requirement for both developers and local authorities. The judgment confirms that a section 106 agreement must be published on the planning register before the planning permission decision notice is issued, in line with article 40(3) of the Town & Country Planning (Development Management Procedure) (England) Order 2015 (2015 DMP Order).
The case concerned a judicial review brought by Chidswell Action Group challenging Kirklees Council’s decision to grant outline planning permission (OPP) for a residential scheme of up to 181 homes on a seven-hectare site at Heybeck Lane, Dewsbury. The OPP was approved under the council’s delegated powers on 23 October 2024. However, both the OPP decision notice and the finalised s106 agreement were not published on the planning register until the following day, 24 October 2024.
The case follows on from R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488 (Greenfields). In Greenfields, the Court of Appeal clarified that the purpose of article 40(3)(b) of the 2015 DMP Order is to allow the public to see the terms of a planning obligation and comment on them. The court emphasised that failing to publish a planning obligation on time does not automatically invalidate a subsequent planning decision; instead, the consequences of non-compliance must be assessed in the context of each case.
Key Findings from Chidswell
In Chidswell, the judge found that timely publication of the s106 agreement would have enabled objectors, including the claimant, to comment meaningfully on issues such as the adequacy of biodiversity safeguards and the achievability of the 10% BNG target. This could also have allowed opponents to advocate for the matter to return to committee for further consideration and public debate, rather than being limited to the narrow grounds of judicial review after the decision became effective. The judge held that a draft s106 agreement should have been placed on the planning portal well before 23 October 2024 to allow sufficient time for informed comment and that the consequences of non-compliance with article 40(3)(b) of the 2015 DMP Order were material in this case. As a result, the OPP was quashed.
Learning points for employers
For developers, the takeaway is clear. Even where the planning authority is supportive, failing to ensure timely publication of a s106 agreement can nullify permission and derail a project. Developers should incorporate formal checks into project timelines to confirm that s106 agreements are uploaded and visible on the planning register before the decision notice is issued, avoiding costly delays, legal challenges, and reputational risk.
Local authorities must also strengthen internal processes to ensure all relevant documentation is publicly available within statutory timelines.
In practice, this case may lead to closer scrutiny of planning registers by applicants and objectors alike. Developers and planning teams must ensure that agreements are negotiated efficiently and that publication deadlines are integrated into broader approval processes. The court’s decision is a cautionary tale: procedural oversights can be as damaging as failures to meet policy or design standards.