R (on the application of Chidswell Action Group) v Kirklees Council [2025] EWHC 2256 (Admin)

Chidswell is an important Planning Court judgment on section 106 transparency, ecology conditions and biodiversity safeguards. Applying the Court of Appeal’s decision in Greenfields, Mr Justice Kerr held that Kirklees Council’s failure to publish the draft section 106 agreement before issuing outline planning permission caused real prejudice to objectors and rendered the permission invalid.

Neutral citation

[2025] EWHC 2256 (Admin)

Court

High Court of Justice, King's Bench Division, Administrative Court, Planning Court

Judgment date

4th September 2025

Judge

Mr Justice Kerr

Case number

AC-2024-LDS-000251

What Chidswell decided

The case concerned outline planning permission for up to 181 homes on land at Heybeck Lane in Dewsbury. The site formed part of a much larger allocation in the Kirklees Local Plan.

Kirklees’ Strategic Planning Committee resolved in December 2022 to approve the application, subject to finalising conditions and a section 106 agreement. The permission itself was not issued until 23rd October 2024, after lengthy negotiations over the conditions and planning obligations.

Chidswell Action Group challenged the permission. Its case eventually focused on ecology safeguards, biodiversity net gain and the council’s admitted failure to place a draft section 106 agreement on the planning register before the permission was issued.

The judicial review succeeded on the section 106 publication ground.

The draft section 106 agreement had to be published before permission

Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires a copy of a planning obligation proposed or entered into in connection with a live planning application to be placed on the planning register.

In Chidswell, an objector had expressly asked about the draft agreements during the long period between the committee resolution and the final permission. A planning officer replied that drafts were not required to be in the public domain and that the completed agreement would appear online with the decision.

That was wrong. The draft section 106 agreement should have been publicly available before the application was finally disposed of.

Greenfields made the purpose of publication clear

While Chidswell was progressing through the court, the Court of Appeal handed down R (Greenfields (IOW) Ltd) v Isle of Wight Council.

Greenfields explained that article 40(3)(b) exists so members of the public can know the terms of a proposed or agreed planning obligation and comment on its subject matter if they wish. A failure to publish does not automatically invalidate every later permission. The practical consequences have to be examined on the facts.

Mr Justice Kerr applied that approach to the Chidswell section 106 agreement.

The ecology safeguards were still being worked out after committee

Ecology had been a major issue when the committee considered the application in 2022. Objectors argued that the ecological survey information was old and that too much was being left to reserved matters.

The officer report advised members that further surveys would be required later and that conditions and the section 106 agreement could mitigate the ecological effects of the development.

However, the permission as eventually drafted allowed certain enabling works before reserved matters and before some of the updated ecological information had been provided. The court considered that the October 2024 permission would have been unlawful on this aspect as originally issued.

Later supplemental obligations cured the ecology timing defect

After the judicial review began, the developer and council entered into two supplemental planning obligations. The second expressly prevented development and enabling works from taking place before the required updated ecological surveys, protection measures and biodiversity assessment had been provided and approved.

The court held that those later obligations cured the timing problem. The ecology ground was therefore academic by the time of the hearing and did not independently justify quashing the permission.

This part of Chidswell is a useful reminder that a later section 106 obligation can sometimes cure a defect in the conditions, depending on what the obligation actually secures.

The BNG challenge did not independently succeed

The section 106 agreement sought to secure a 10% biodiversity gain and required a later biodiversity assessment and management plans. Chidswell Action Group was concerned that enabling works might reduce the biodiversity value of the site before the baseline was fixed.

The court did not grant relief on that ground. The judge considered that the relevant pre-development baseline could not lawfully be artificially reduced by later works and that the wording introduced by the second supplemental obligation removed any remaining doubt.

The judgment therefore should not be described as a decision that the council’s BNG figure itself was unlawful. The successful ground was the failure to publish the draft section 106 agreement in time for public scrutiny.

Why non-publication caused real prejudice

The draft agreement mattered because it contained the very ecology and biodiversity safeguards that had been central to the committee’s decision. If objectors had been able to read it before permission was issued, they could have identified the weaknesses that were later addressed by the two supplemental deeds.

They could then have made those points to the council as planning representations rather than having to raise them afterwards through judicial review.

The judge described the period before the decision as involving a serious want of transparency. The developer and council were negotiating the obligations while the product of those negotiations was not available to the public.

The narrow committee vote reinforced the prejudice

The original committee resolution had been carried by four votes to three. The three members voting against the scheme had already expressed concern about whether there was enough up-to-date ecological information.

That made it especially difficult for the court to conclude that publication of the draft section 106 agreement could not have made a difference. The judge considered there was a strong possibility that the agreement would at least have been improved before the permission was issued, and that the matter might have gone back to committee.

The highly likely test did not save the permission

Kirklees and the developer argued that the outcome would highly likely have been the same even if the draft agreement had been published.

The court rejected that submission. It could not be said that the outcome for the claimant would highly likely have been no different. There was a real possibility of further committee consideration or materially improved obligations before the decision became effective.

The court therefore held that the admitted article 40(3)(b) breach rendered the permission invalid and proposed to quash it.

Chidswell does not make every publication error fatal

Like Greenfields, Chidswell is fact-sensitive. The legal rule is not that every delay or mistake in placing a planning obligation on the register automatically destroys the eventual planning permission.

The important questions include what was missing from public view, whether interested people would realistically have commented on it, what those comments might have addressed and whether the omission caused real prejudice to the planning process.

Here those factors strongly favoured the claimant.

Read the full Chidswell judgment

The approved Planning Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guides to the Section 106 Agreement, the planning register, Biodiversity Net Gain and outline planning permission.

Chidswell Case Law Page Updated: 9th September 2026