Folkestone & Hythe s106 Breach at Sandgate Pavilions: Stoneleigh House Link Not Secured—14 Affordable Homes Lost

On 3 May 2016, Folkestone & Hythe’s Tory controlled Planning Committee approved Sandgate Pavilions (owned by a David Pownceby Company) (Y15/1154/SH) subject to a Section 106. By then, the law already required councils to publish the proposed s106 on the planning register before determination. They didn’t. The off-site “solution”—14 affordable homes at Stoneleigh House, Tram Road in Folkestone Harbour (one of the district’s most deprived wards)—was never bound in law and never built. The money safeguard didn’t land either.

What The Minutes Show & Who Made The Call

The minutes record that the Committee resolved to grant (subject to an acceptable heritage assessment) and to the applicant entering into a s106 for primary education, community services, open/play space, affordable housing and a wildlife habitat maintenance programme, with delegated authority to the Interim Head of Planning to “add any further conditions” and **negotiate the wording of the legal agreement.” Crucially, the motion was proposed by then Council Leader Cllr David Monk (pictured above right), seconded by Cllr Philip Martin, and carried 9–2 (For 9; Against 2; Abstentions 0).

The minutes also note:

• A public letter raising land slippage and footprint concerns.

• Amendments to the officer report: add the Sandgate Village Design Statement; delete text at 8.5; clarify at 8.9 and 8.20 that a previous permission remained extant; and confirm at 8.94 that the Tram Road (Stoneleigh House) application for 14 flats had been received as a full (not reserved matters) application—explicitly flagging the intended off-site linkage that evening.

The Missing Legal Link The Council Chose Not To Secure

Officers’ own report promoted delivery of 14 off-site affordable homes at Stoneleigh House in place of on-site provision at Sandgate Pavilions—and, if that fell through, a £1.716m commuted sum in tranches. Yet the report also admitted the Tram Road scheme “could not be tied … within the S106 … at this time,” proposing a later Deed of Variation instead. No draft s106 was made available for the public to read before the decision. That combination—no binding link, no published draft—is the nub of the failure.

What The Law Already Required (By 3 May 2016)

• DMPO 2015, Article 40(3)(b) required the planning register (for undetermined applications) to include “a copy of any planning obligation … proposed,” with Article 40(4)(f) requiring the executed agreement after decision. In practice, that means at least one draft on the register before grant, then the final deed afterwards.

• Midcounties (Admin Ct, 2009) — the case every planning lawyer knows:

  • [83]: duty to publish a copy of any planning obligation proposed or entered into.

  • [90]: “The section 106 agreement is not a private agreement to be revealed only when it is concluded…” — it must be available during determination.

  • [91]: compliance requires “not just the heads of terms, but at least one draft … [and] the final version” on the register.

  • [89] (context): councils must use judgment about when new drafts require disclosure; negotiations don’t excuse the duty.
    These points are widely cited in planning notes and judgments (see, e.g., vLex summaries).

• Davis v Oxford CC (Admin Ct, 2023) (pargraph 67) distilled the same Article 40(3)(b) requirement: draft s106s belong on the register before grant so third parties can see and comment on the actual terms.

• Greenfields v Isle of Wight (CA, 2025) then nailed the consequence: failure to place the proposed agreement on the register before grant can render the permission unlawful where the authority relied on it.

Bottom line: By the night of 3 May 2016, publishing a draft s106 was not optional; it was the transparency duty in black and white, reinforced by case law; and the Council failed to follow the law.

The Consequence: 14 Affordable Homes In Folkestone Harbour Ward Were Lost

The off-site scheme won permission on 26 Oct 2018 (Y16/0333/SH) for 14 affordable units at Stoneleigh House—in Folkestone Harbour, a ward containing neighbourhoods among England’s most deprived (One note’s this application did NOT go before the planning committee). But the site was not started, the permission later lapsed, and zero homes were delivered. The £1.716m fallback never safeguarded residents either.

Let’s be plain. Had a draft s106 been published (as Article 40 demands), members and residents could have insisted—before the vote—on either:

(i) a hard, contemporaneous legal linkage binding Sandgate Pavilions to delivery at Stoneleigh House (with step-in/longstop protections), or
(ii) secured, enforceable cash (bonds/escrowed triggers) that actually protected the public if off-site delivery failed.

Instead, the linkage was deferred to a future deed that never came. The result: 14 affordable homes in Folkestone Harbour were lost.

Accountability Now

1. Publish the paperwork: Put on the public register (or release under EIR) every draft and final s106/Deed of Variation for Y15/1154/SH, and state whether any “proposed” s106 was published before the 3 May 2016 decision.

2. Show the enforcement trail: Produce trigger logs, demands and legal advice explaining why the £1.716m fallback wasn’t secured when Stoneleigh stalled.

3. Acknowledge the breach: Accept that not publishing the proposed agreement before determination breached the Article 40(3)(b) transparency duty—a position later reinforced by the Court of Appeal.

One sentence the Council should now say out loud:
“We did not publish the draft s106, we did not secure the off-site linkage—and 14 affordable homes in Folkestone Harbour were lost.”

Conclusion: No Draft, No Linkage, No Homes – And No Excuses

This was not a harmless paperwork slip. It was a breach of a black-letter transparency duty that existed on the night the decision was taken—and it happened on a scheme where members were explicitly told the off-site “solution” could not be tied in the s106 at that time. The motion was proposed by the then Council Leader Cllr David Monk and carried by the committee; the consequence is felt not in a committee room but in Folkestone Harbour, where 14 affordable homes were lost.

If the Council cannot produce a proposed/draft s106 that was placed on the register before grant, it should say so plainly, apologise, and set out a rectification plan. That plan must include: (1) full publication of all drafts, deeds and correspondence; (2) a recovery strategy for any £1.716m still arguably due; (3) referral to the Monitoring Officer for a report on compliance and training; (4) a binding policy that no “subject to s106” resolution proceeds without the draft deed on the public register; and (5) independent scrutiny (external auditor/LGSCO) where appropriate.

Residents were entitled to see the legal mechanism before the Tory led planning committee pressed the green button. They were entitled to homes—or to watertight protections if delivery failed. They got neither. Until the Council confronts that fact, publishes the missing paperwork, and changes how it handles s106 obligations, this story is not about “lessons learned.” It is about accountability overdue.

The Shepway Vox Team

Discernibly Different Dissent