Planning authorities and developers urged to take action following Court of Appeal ruling

The appeal concerned the granting of planning permission for the West Acre Park housing development which proposed building 473 new houses, other buildings and related infrastructure on farmland in Ryde on the Isle of Wight.

The legal challenge was originally brought by Greenfields (IOW) Ltd (Greenfields), which represented the local community, which objected to the council granting planning permission to developers to build on the 200-year old site at Westridge Farm.

The Court of Appeal ruled that the council had acted unlawfully when it granted planning permission for the development because it had failed beforehand to properly publish a section 106 (s106) planning obligation under the Town & Country Planning Act 1990. s106 agreements secure commitments from developers to pay contributions towards or alternatively deliver infrastructure, environmental enhancements, affordable homes and facilities such as schools.

The court held that the developer's failure to publish it prejudiced Greenfields from being able to have the opportunity to see and make representations the content of the s106, especially a proportionate financial contribution that was being apportioned between the West Acre Park development and other local development sites, including that controlled by Greenfields.

The decision overturned an earlier hearing at the High Court, by ruling that the planning permission should not only be declared unlawful, but also be quashed. The ruling brings to an end a four-year legal battle over the farmland. The Court of Appeal awarded Greenfields 75% of its legal costs, capped at £70,000.

Richard Ford, a planning expert at Pinsent Masons, said planning authorities should not be discouraged by the Court of Appeal's decision. "It is important that the impacts of this case do not result in unnecessarily burdensome implications for already stretched local planning authorities, nor are used as a means of undermining or more likely delaying planning decisions."

Following the ruling, local planning authorities are being urged to include as much detail as possible in the heads of terms (HOT) template for any s106 agreement, including the purpose and amount of any financial contribution.

Ford stressed that the judgment did not alter but merely clarified the existing obligations placed on the local authority with respect to s106 agreements. "The judgment is clear that article 40(3) does not create a duty to consult and the publication of the s106 is about allowing the public opportunity to comment," said Ford. "The judgment also indicated that compliance in substance, if not form, would be sufficient when commenting on the s106 HOT which were appended to the committee report, although in this case the HOT were not sufficiently detailed as they missed information on the quantum of the contribution that was the focus of attention by the claimant."

Rebecca Warren of Pinsent Masons said that planning authorities were likely to adopt a conservative approach to interpreting the ruling. "Pragmatism is needed and we would recommend a detailed set of HOT appended to a planning committee report setting out purposes and quantums, where possible," she said. "Not every iteration of the draft s106 itself needs be uploaded to the public register and early drafts are unlikely to be sufficiently developed to be suitable to disseminate in any event. It is key that an advanced draft and final draft be uploaded to the register, but article 40(3) and this judgment make it clear this has to be before permission is granted which is distinct from when a resolution to grant is made."