Put draft s106 agreements on the web – or else!

The Court of Appeal decision in R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488 has starkly underlined the importance of transparency in the planning process; more specifically, the obligation to publish draft s106 agreements on the planning register (usually the council’s planning portal). This case highlights the legal consequences of failing to comply with statutory requirements at all and underscores the importance placed by the courts on public participation in planning decisions. This is a key decision to take note of.

The law

The legal framework is set out in article 40(3) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO 2015) and requires that local planning authorities (LPAs) maintain a register containing key documents related to planning applications, including:  

• copies of the application and accompanying plans
• draft and final s106 agreements  
• any other relevant planning obligations
• details of modifications to such agreements.  

What’s the purpose of this provision? 

It intends to ensure that the public has access to critical documents and allow meaningful engagement in the planning process.

A helpful reminder is that the old Circular 05/2005, Planning Obligations, in paragraph 41, stated: “The process of setting planning obligations policies and negotiating planning obligations should be conducted as openly, fairly and reasonably as possible and members of the public should be given every reasonable assistance in locating and examining proposed and agreed planning obligations which are of interest to them.”

That clearly remains good practice, but what happens when LPAs fail to comply?  

Drafts, travelling drafts and final agreements

The courts have previously grappled with the extent of this obligation. In R (Midcounties Cooperative Ltd) v Wyre Forest DC [2009] EWHC 964 (Admin), Ouseley J held that at least one draft of a s106 agreement should be made available, emphasising that such agreements are not private contracts but matters of public interest:

“90. The section 106 agreement is not a private agreement to be revealed only when it is concluded, any more than conditions are a matter exclusively for private negotiation and debate, to the exclusion of the public. I accept there may be room for debate as to whether every draft needs to be registered for the terms and purpose of the legislation to be complied with, although all significant changes should be. I do not rule out that there may be some parts of the draft which may involve negotiations akin to without prejudice negotiations which for a while it may be legitimate not to publicise. I recognise that a new draft does not come into existence with each change made by an officer for his own internal purposes before it is sent out to the other side, where undoubtedly it would become a new draft. Not every proposed change to a clause may create a new draft, but for all that the judgment which the District Council is required to exercise is one which is intended to enable public participation and comment on a draft before it is set and executed. It is a question of judgment which must be exercised with the purpose of the statute in mind.

“91. It is clear here that compliance with the statutory obligation would have required not just the heads of terms, but at least one draft, as well as the final version of the section 106 agreement, to be placed on the registeras a means of making it publicly available. In my judgment, the statutory requirements of the GPDO were not met.”

However, in R (Police and Crime Commissioner for Leicestershire) v Blaby District Council [2014] EWHC 1719 (Admin) the court suggested that not every “travelling draft” must be published, but rather only significant iterations:

“80. Whilst I have had very little opportunity to give this issue mature consideration, I find it difficult to find within Article 36(3)(b) an obligation that ‘travelling drafts’ of a section 106 agreement should be placed on the register. Mr Goodman submitted that Article 36 is not intended to require that every iteration of a document ‘under construction’ by negotiation must be put on the planning register and I am inclined to agree that that is so.

“81. At all events, Mr Elvin and Mr Goodman seem to me to have the complete answer to this allegation in this case, namely, that there is no evidence or even a claim that the Claimant checked the local planning register before the planning permission was granted and accordingly no prejudice could have arisen. If there was any failure to comply with Article 36(3)(b), it could have had no impact on the outcome of this case.”

This left some ambiguity: when does a draft become substantial enough to require publication on the register?  

The IoW/Greenfields case: a breach with consequences

The IoW/Greenfields case has brought the issue back into focus. In this case, Isle of Wight Council failed to upload any version of a s106 agreement, draft or final, to the planning register before granting permission. This was compounded due to the completed s106 agreement not being placed on the planning register. The claimants kept checking the planning register and found that no draft s106 agreement had been uploaded. It is against this background that the Court of Appeal had to decide whether this failure to upload the draft and the final s106 agreement meant the planning permission should be quashed.  

In line with the cases discussed above, the Court of Appeal ruled that not every breach automatically renders a decision unlawful and that it depends on the consequences of the breach. What the Court of Appeal looked at was (1) the extent to which there had been substantial compliance with the purposes of article 40(3) DMPO 2015 and (2) the extent of any prejudice suffered as a result of the failure to publish. The Court of Appeal found that there had been no substantive compliance with the requirement and prejudice had been suffered by the claimants on the facts of this case.  Consequently, the planning permission was quashed.

Key takeaways  

1. Transparency is key – LPAs (and developers) must ensure that both draft and final s106 agreements are published on the planning register to allow public scrutiny.  

2. Not every minor draft needs uploading – significant iterations should be published on the register, but the line between a “travelling draft” and a substantive version is fact-sensitive. 

3. Breaches can invalidate permissions – while not every failure to comply will be fatal, a material breach that prejudices public participation can lead to quashing.  

Conclusion

The Greenfields case reinforces the principle that planning decisions must be made openly. Applicants and developers should be aware that draft s106 agreements will be shared and ensure that LPAs do publish them as required. Applicants may also want to consider the contractual arrangements between them and promoters, agents, consultants, architects etc. to ensure the responsibility for ensuring it happens is clear.

LPAs, in consultation with the applicant for planning permission, should give careful consideration to the point at which a substantial draft s106 agreement is made available to the public before the grant of planning permission to avoid the risk of a successful judicial review.