Planning permission quashed over failure of council to publish draft section 106 agreement

Mr Justice Kerr said in his judgment there had been “a serious want of transparency" and although he rejected both grounds originally argued by Chidswell Action Group (CAG) as academic, he accepted another that was tabled late concerning the failure to publish the section 106 agreement.

He said this extra ground could be raised, and rejected Kirklees’ submission that it was unarguable, ”given the admission that the [council] failed to comply with its obligation to publish any draft section 106 agreement at any time prior to the issue of planning permission.

“It is clear that the court has discretion to allow the amendment out of time.”

Kirklees had granted outline planning permission in October 2024 for up to 181 dwellings at Heybeck Lane, Dewsbury, which forms part of a 120-hectare parcel of land allocated for residential development in the local plan.

CAG opposed the development, originally arguing that Kirklees erred by taking future ecological surveys into account without sight of the relevant condition, or that the ecology conditions which were imposed were ineffective.

It also argued that the council took into account an inaccurate assessment of biodiversity net gain.

Kerr J said subsequent events had rendered both these points academic, but the new ground - while linked - could be argued.

He said publication of a draft section 106 agreement was mandatory and although CAG should have challenged that failure earlier, “I bear in mind that [local activist] Ms Naylor is not a lawyer.”

The judge said Kirklees ought to be held accountable and it was “unattractive for a public body such as this one to avoid the consequences of an unexplained flagrant breach on purely procedural grounds, without asserting that it or the developer has suffered any prejudice arising from the lateness of the application to amend; and where the decision at issue affects such a major and controversial development”.

Kirklees and developer CC Projects had suffered no prejudice and had been able to address the additional ground fully as its lateness was "quite minor”.

Publication of the draft section 106 agreement would have enabled objectors to comment and advocate further consideration and public debate about the adequacy of the biodiversity safeguards and the achievability of the 10% biodiversity net gain. Kerr J said there had been “quite a strong likelihood that the issue would have gone back to the committee…”

He said a draft of the section 106 agreement should have been placed on the planning portal well before 23 October 2024, and noted the obligation to publish “is not conditional on a prior request to do so”.

Non-publication “has caused real prejudice”, Kerr J said, adding “I am not willing to withhold relief in respect of the failure to publish the draft section 106 agreement, in breach of the statutory obligation to do so.

“There was a serious want of transparency in the period leading to the decision challenged, while the developer and [Kirklees] were negotiating with each other and shielding the product of their negotiations from the public”.

The judge added he was “far from persuaded” that if the draft had been published, it was highly likely the outcome would not have been substantially different.

He concluded: “There is, at least, a strong possibility that if the conduct complained of (non-publication) had not occurred the outcome would have been substantially different.

“The section 106 obligations would probably have been improved, at least, in the way they now have been. The committee might well have asked for updated biodiversity work to be done before deciding whether to proceed.”

Kirklees' grant of planning consent was invalidated by the failure to publish and Kerr J awarded costs of up to £35,000 to CAG.

A CAG statement welcomed the judgment but added “we’re not naïve and know this isn’t likely to be the end of the challenge”.

Mark Smulian