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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wildfish, R (On the Application Of) v Buckinghamshire Council [2025] EWHC 3060 (Admin) (20 November 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/3060.html Cite as: [2025] EWHC 3060 (Admin) |
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AC-2025-LON-001148 |
KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE KING on the application of WILDFISH | AC-2025-LON-001058 Claimant |
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| - and - |
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| BUCKINGHAMSHIRE COUNCIL |
AC-2025-LON-001058 Defendant |
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| - and - |
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| (1) DAVID WILSON HOMES (SOUTH MIDLANDS) LIMITED (2) ANGLIAN WATER SERVICES LIMITED |
AC-2025-LON-001058 Interested Parties |
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And Between: |
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| THE KING on the application of JANE WOOD |
AC-2025-LON-001148 Claimant |
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| - and - |
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| BUCKINGHAMSHIRE COUNCIL |
AC-2025-LON-001148 Defendant |
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| - and - |
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| BDW TRADING LIMITED TRADING AS DAVID WILSON HOMES (SOUTH MIDLANDS) LIMITED |
AC-2025-LON-001148 Interested Party |
____________________
Wildfish
in AC-2025-LON-001058 and Fortune Green Legal Practice in AC-2025-LON-001148) for the Claimants
Charles Streeten and Stephanie Bruce-Smith (instructed by Buckinghamshire Legal Services) for the Defendant
Hashi Mohamed and Edward-Arash Abedian (instructed by Dentons UK and Middle East LLP) for the First Interested Party in AC-2025-LON-001058 and the Interested Party in AC-2025-LON-001148
The Second Interested Party in AC-2025-LON-001058 did not appear and was not represented
Hearing dates: 14 – 16 October 2025
____________________
Crown Copyright ©
Mrs Justice Lang:
Wildfish"
and "Wood" - seek judicial review of the decision, dated 4 March 2025, by the Defendant ("the Council") to approve an application for the grant of reserved matters approval ("RMA") and discharge of conditions 8 and 22 in respect of an outline planning permission ("OPP"), granted on 24 March 2022, with a further varied permission granted on 10 December 2024, for a residential development near Maids Moreton, Buckinghamshire ("the Site").
Wildfish
is an environmental charity that campaigns to protect rivers and streams in the United Kingdom from pollution and over-abstraction. Ms Wood is a local resident who has objected to the development, both in her personal capacity, and as an active member of the Maids Moreton and Foscote Action Group. Their claims have been linked for case management and hearing because they challenge the same decision.
Wildfish
claim may be summarised as follows:
i) Ground 1: error of law in approving a substantial alteration to the application for RMA after expiry of the time limit, and failure to consult on the application.
ii) Ground 2: error of law in approving reserved matters "as varied by" the permission granted under section 73 Town and Country Planning Act 1990 ("TCPA 1990") on 10 December 2024 ("the section 73 permission").
iii) Ground 3: the planning officer's report ("OR") was significantly misleading; irrational; insufficiently investigated; failed to refer to material considerations; and it was inadequately reasoned. The Ofwat email dated 27 January 2025 was not listed as a background paper, as required by section 100D Local Government Act 1972 ("LGA 1972").
iv) Ground 4: error of law in deciding not to re-consider the screening decision under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("EIA Regulations 2011").
i) Ground 1: the decision to discharge condition 22 was ultra vires and irrational because the Defra 2.0 BNG metric and guidance was not used when calculating biodiversity net gain.
ii) Ground 2: the OR misled Committee Members on the calculations for measuring biodiversity net gain, did not investigate sufficiently, did not refer to material considerations and gave inadequate reasons. Alternative calculations, presented on behalf of objectors by Professor Shreeve, were not listed as background papers, in breach of LGA 1972.
iii) Ground 3: error of law in accepting the October 2024 resubmission of reserved matters out of time.
Planning history:
Wildfish
EIA screening
The OPP
"Details of the appearance, landscaping, layout and scale, (hereinafter called "the reserved matters") shall be submitted to and approved in writing by the Local Planning Authority before any development begins and the development should be carried out as approved.
Reason: The application is for outline planning permission."
"The details to be submitted for approval in writing by the Local Planning Authority in accordance with Condition (1) above shall include a foul water drainage scheme for the site. The scheme shall include a waste water treatment capacity assessment to identify the need for any infrastructure upgrades and a programme for carrying out the works to inform site delivery.
No part of the development shall be occupied until confirmation has been provided to the local planning authority that the scheme and programming of any wastewater upgrades required to accommodate the additional flows from the development have been agreed with Anglian Water; and all wastewater upgrades required to accommodate the additional flows have been completed. The development shall be carried out in accordance with the approved details.
Reason: Network reinforcement works are likely to be required to accommodate the proposed development. Any reinforcement works identified will be necessary in order to avoid sewage flooding and/or potential pollution incidents in accordance with policy I5 and D-MMO006 of the Vale of Aylesbury Local Plan and the National Planning Policy Framework."
"Prior to commencement of development updated Biodiversity Net Gain Calculations must be submitted and be approved in writing by the local planning authority, alongside the Ecological Mitigation, Compensation and Enhancement Plan and the Landscape and Ecology Management Plan. The calculations must be undertaken using the Defra 2 metric and guidance and result in a net gain in both habitat and hedgerow units of at least 10% having regard to net gain being delivered across the overall development site.
Reason: To comply with the requirements of Policies D-MMO006 and NE1 of the Vale of Aylesbury Local Plan and the NPPF."
Previous judicial review claim
RMA applications
"Reserved matters being sought for appearance, landscaping, layout and scale for 163 dwellings on land off Walnut Drive and Foscote Road and discharge of condition 22 (biodiversity net gain) and condition 8 (CMP) of outline approval 16/00151/AOP)."
Communications on drainage in 2023 & 2024
"Anglian Water has assessed the impact of a pumped conveyance from the planning development to the public foul sewerage network and we can confirm that this connection is acceptable as the foul sewerage system, at present, has available capacity for your site…..
A full programme of works will be issued upon S104 consultation with Anglian Water ….."
"Our response stating the drainage strategy is acceptable to us relates to the local foul network, it does not relate to the receiving water recycling centre (WRC), which is Buckingham WRC.
Buckingham WRC does not currently have dry weather flow headroom to accommodate the additional flows from this development site. However, as the site has outline permission Anglian Water is obligated to accommodate the additional flows. This process is managed by us, and the funding comes from customer bills. It is not a process the developer can engage in or have any influence.
We have identified Buckingham WRC as requiring investment in our Drainage and Wastewater Management Plan and our draft Business Plan. However, our Business Plan is subject to Ofwat approval, and our planned investment will have to change if Ofwat does not agree with what we have proposed.
Final determination is in December. Our Business Plan covers the period 2025-2030 and we cannot guarantee that the proposed investment strategy does not change due to risks and prioritisation.
In summary we have no committed investment at Buckingham WRC and it does not currently have headroom to accommodate the additional flows."
Section 73 permission
"Whilst we have identified from Anglian Water that there is a water capacity issue in the area and upgrades will be required at the Buckingham Water Recycling Centre, no detailed programme for such upgrades have been provided. Anglian Water have, however, confirmed that upgrades to the Buckingham Water Recycling Centre is planned which is subject to OfWat approving their business plan. Anglian Water have also confirmed that they are obliged to accommodate the additoinal flows from this development and funding will come from customer bills (presumably if OfWat funding is not available).
It should also be noted that a Supreme Court Judgement 'Barratt Homes Limited v Welsh Water' concluded that developers have the right to connect to the public sewer regardless of capacity concerns as noted at paragraph 56 of the judgement which states:
…The facts of this case do not illustrate that section 106 gives rise to a problem with the point of connection. It illustrates the more fundamental problem that can arise as a result of the fact …. that no objection can be taken by a sewerage undertaker to connection with a public sewer on the ground of lack of capacity of the sewer.
At Outline stage, representations were made by Anglian Water and reported to the Strategic Sites Committee on Thursday 19 November 2020. Paragraph A3.16 of the Committee report states:
Wastewater Treatment – The foul drainage from this development is in the catchment of Buckingham Water Recycling Centre which currently does not have capacity to treat the flows the development site. Anglian Water are obligated to accept the foul flows from the development with the benefit of planning consent and would therefore take the necessary steps to ensure that there is sufficient treatment capacity should the Planning Authority grant planning permission.
This echo's [sic] verbal conversation we have had with Anglian Water who have said the Buckingham Water Recycling Centre will be upgraded if required as a result of detailed reserved matters consent being granted.
This application therefore seeks to re-word condition 13 …. To read the following which allows the current reserved matters application to be issued and Anglian Water to provide a programme for the upgrade of Buckingham Water Recycling Centre:
No part of the development shall be occupied until confirmation has been provided to the local planning authority that the scheme and programming of any wastewater upgrades required to accommodate the additional flows from the development have been agreed with Anglian Water; and all wastewater upgrades required to accommodate the additional flows have been completed. The development shall be carried out in accordance with the approved details.
Reason: Network reinforcement works are likely to be required to accommodate the proposed development. Any reinforcement works identified will be necessary in order to avoid sewage flooding and/or potential pollution incidents in accordance with policy I5 and D-MMO006 of the Vale of Aylesbury Local Plan and the National Planning Policy Framework."
Wildfish
sent pre-action letters to the Council on 16 and 20 December 2024, challenging the lawfulness of the decision to grant the section 73 permission on 10 December 2024. The Council rejected the allegations made.
Wildfish
decided not to file a claim.
Application to amend the description of the RMA
"Reserved matters being sought for appearance, landscaping, layout and scale for 153 dwellings on land off Walnut Drive and Foscote Road and discharge of condition 22 (biodiversity net gain) and condition 8 (CMP) of outline approval 16/00151/AOP, as varied by application 24/02780/VRC (condition 13 - Foul water drainage scheme) approved on the 10th December 2024."
Communications on drainage in 2025
Wildfish
("the Ofwat email") explaining that it had rejected the request for investment at Buckingham WRC because the funding and programme proposed only addressed current non-compliance, not future growth. Anglian had not been complying with its permit. Anglian had already been funded to meet current permits, and customers should not be forced to pay again. The amount that Anglian had requested from Ofwat was less than would be required to put it back into compliance.
Wildfish
forwarded the Ofwat email to the Council, and the Council posted it on its website on 4 February 2025.
"…. I have been forwarded some comments made by Anglian Water in respect of an application for a health centre in Buckingham which would also need to be served by the Buckingham WRC which at the current time has insufficient capacity. The comments state that:
"Buckingham WRC was included for a named growth scheme in our PR24 submission to OFWAT. The scheme was assessed by OFWAT but did not meet their criteria for any funded enhancement allowance in the final determination (released in December 2024). We are currently reviewing and analysing all of our final determination results. We, therefore, submit a holding objection until the end of February, by which time a decision on the investment at Buckingham WRC will be made."
I would be grateful if you could explain what 'funded enhancement allowance' means? I was of the understanding that the works to the Buckingham WRC, as a named scheme within the Business Plan would be completed within the period 2025-2030. Is that still the case or has this position changed? Or is it that you are reviewed the names schemes in terms of priorities? I would be grateful for your further assistance and look forward to hearing from you. . ."
"What this means is that the funding we asked for in our business plan hasn't been allocated as it did not meet Ofwats criteria, they are saying we cannot spend customer bills to deliver a growth scheme at this WRC. We are currently trying to understand what this means and what, if anything we can commit to. I have no more information at this time, but I will keep you updated when a decision is made."
"Thanks for coming back to me. We are looking to report the reserved matters application for my Maids Moreton site to Committee on 13th February 2025 (with my report being published 5th Feb, with any updates reported verbally at the meeting). As you know this site has outline planning permission for up to 170 dwellings (and the reserved matters application sets out the provision of 153 dwellings). My understanding is that you are still obliged to accommodate the development as it has planning permission and the variation of condition application (condition 13, foul drainage) that we have approved (24/02780/VRC) still requires details to be approved prior to occupation. I would be grateful for any further comments as soon as possible please as I am sure this is a matter the objectors will raise at Committee."
"Sorry for not replying sooner. You are correct. Any site with an existing consent, including outline, has a right to connect and we are obligated to manage those flows."
"Since the 13th January 2025, Anglian Water have issued holding objections for planning applications which would be served by the Buckingham Water Recycling Centre (WRC). This was whilst a decision on investment was being made following OFWAT's final determination, released in December 2024.
Funding has now been confirmed for the Buckingham WRC, and therefore we are in a position to withdraw our holding objections, and replace our response with a requested condition. Please find our requested condition below:
This site is within the catchment of Buckingham Water Recycling Centre (WRC), which currently lacks the capacity to accommodate the additional flows generated by the proposed development. However, Buckingham WRC is included within our Business Plan as a named growth scheme with investment delivery planned between 2025-2030. To ensure there is no pollution or deterioration in the receiving watercourse due to the additional foul flows that would arise from the development, we recommend a planning condition is applied if permission is granted.
Condition: Prior to occupation written confirmation from Anglian Water must be submitted confirming there is sufficient headroom at the water recycling centre to accommodate the foul flows from the development site.
Reason: to protect water quality, prevent pollution and secure sustainable development having regard to paragraphs 7/8 and 187 of the National Planning Policy Framework.
Please note our change in holding objection to condition relates only to the Water Recycling Centre part of our planning responses…..
Please use this email to supersede Buckingham Water Recycling Centre comments issued by Anglian Water from the 13th January to date."
Wildfish
dated 28 March 2025, Ofwat advised as follows:
"Buckingham sewage treatment works (STW) is receiving an enhancement allowance of £0m for growth at sewage treatment works. Our adjustment to the enhancement growth allowance for Buckingham is because the Company has been funded previously to meet existing permit conditions. This should not mean that the scheme is not going ahead if the STW is under capacity and not meeting its permit conditions. Any costs to address non-compliance with existing permit conditions should be borne by the company, not customers, as compliance with permits has already been funded as part of base expenditure allowances.
Buckingham STW is receiving an enhancement allowance of £5.5m for phosphorus removal."
Wildfish
under the Environmental Information Regulations 2004, including the following:
"1. Whether Anglian has a binding or other commitment in place for investment for the sewage works (please specify the basis of the commitment if there is one)
Buckingham WRC was identified as a WRC we wished to invest in however we have received no allowance for this upgrade from Ofwat in our business plan for the coming AMP. This is confirmed in Ofwat's email of 27 January 2025.
As you may be aware we have applied to the CMA for a redetermination of our business plan. As such, we cannot rule out that funding will not be granted for the Buckingham WRC growth scheme in due course. You will be able to review the redetermination on the conclusion of the CMA process in due course.
Despite Ofwat's decision not to approve funding we are reviewing opportunities to enable us to deliver the scheme and will be able to confirm once we have received the CMA's redetermination….."
Officer's report 5 February 2025
"1.6. Policy D-MMO006 requires development proposals to provide an updated assessment of wastewater treatment works capacity to be carried out to identify the need for infrastructure upgrades and how and when these will be carried out to inform site delivery. Condition 13 of the outline permission required the details submitted for approval to include a foul water drainage scheme for the site, including a waste water treatment capacity assessment to identify the need for any infrastructure upgrades and a programme for carrying out the works to inform site delivery to accompany the reserved matters application. Planning application 24/02780/VRC was submitted to vary this condition on the basis that the reserved matters scheme does not include the necessary detail as required by this condition. The VRC application sought to amend the wording of the condition such that any necessary upgrade works are carried out in advance of any occupation of the development to ensure that the development can still be serviced appropriately at the time it is required. This application has been approved and the Applicants have requested the current application description also includes reference to the approved variation of condition application in respect of the amended foul drainage condition. Anglian Water are obligated to accommodate the needs of the development (at the time the planning permission was given). Given the staged build out of the development and that the updated planning condition would still ensure that the necessary upgrades and capacity are secured prior to the occupation of the development, it is considered that in the specific circumstances of this case, this conflict with an element of Policy D-MMO006 should be given limited negative weight."
"Concerns have been raised in representations regarding the position of the outline planning consent and the subsequent Section 73 consent in respect of this reserved matters application. To assist Members in this regard, legal advice has been sought and the advice has confirmed that it is not necessary to make a fresh reserved matters application simply because there is now a new permission (24/02780/VRC). Rather, this existing reserved matters application can be considered with reference to the new Section 73 permission. This matter has been addressed in para 1.6 of the Officer's report. The Town and Country Planning Act 1990 at Section 73 allows for conditions to an application to be varied, although applicants cannot seek to extend the time limit through this mechanism. Having regard to these matters it is considered that Officers have had appropriate regard to the Section 73 application and assessed the merits of the proposals in the reserved matters application in recommending this reserved matters application for approval. This has been confirmed as a legitimate approach.
The approved S73 application is a legally valid planning permission and therefore Members are at liberty to consider the reserved matters application before them in the normal manner, having regard to the planning history."
"e. an updated assessment of wastewater treatment works capacity needs to be carried out, working with Anglian Water, to identify the need for infrastructure upgrades and how and when these will be carried out to inform site delivery."
"Foul Water
5.129 The applicant has been in discussion with Anglian Water regarding the development of the site. As part of the application documents a Pre-Planning Assessment Report by Anglian Water (report amended 16 August 2023) appeared to indicate that there is sufficient capacity in the water supply network to serve the development. This report also indicated that 'The foul drainage from the proposed development is in the catchment of Buckingham Water Recycling Centre, which currently has capacity to treat the flows from your development site.' In Anglian Water's consultation response of 9th November 2023, they also commented that the impacts on the public foul sewerage network were acceptable at this stage but requested to be consulted on the discharge of condition 13 of 16/00151/AOP. This condition required the following:
The details to be submitted for approval in writing by the Local Planning Authority in accordance with Condition (1) above shall include a foul water drainage scheme for the site. The scheme shall include a waste water treatment capacity assessment to identify the need for any infrastructure upgrades and a programme for carrying out the works to inform site delivery. No part of the development shall be occupied until confirmation has been provided to the local planning authority that the scheme and programming of any wastewater upgrades required to accommodate the additional flows from the development have been agreed with Anglian Water; and all wastewater upgrades required to accommodate the additional flows have been completed. The development shall be carried out in accordance with the approved details.
Reason: Network reinforcement works are likely to be required to accommodate the proposed development. Any reinforcement works identified will be necessary in order to avoid sewage flooding and/or potential pollution incidents in accordance with policy I5 and D-MMO006 of the Vale of Aylesbury Local Plan and the National Planning Policy Framework.
5.130 Representations have been received raising objections to the position given in respect of foul water and further investigations have been undertaken with Anglian Water. Their comments stating the drainage strategy was acceptable related to the local foul network, it did not relate to the receiving waste recycling centre (WRC) which is Buckingham WRC. Anglian Water have confirmed that Buckingham WRC does not currently have dry weather flow headroom to accommodate the additional flows from this development site. However, as the site has outline permission Anglian Water is obligated to accommodate the additional flows. Anglian Water advised that this process is managed by them, and it is not a process the developer can engage in or has any influence over. Anglian Water identified Buckingham WRC as requiring investment in their Drainage and Wastewater Management Plan and their draft Business Plan. In Anglian Water's 'Our Plan for the future – Buckinghamshire' (October 2024). This document identifies the level of investment as being over £59 million to include: £37 million on new filters and creating one wetland area to improve river quality and £2 million to reduce storm overflow spills.
5.131 The Business Plan was subject to review by Ofwat in December 2024, with the Business Plan covering the period 2025-2030 and Anglian Water had commented that it could not guarantee that the proposed investment strategy would not change due to risks and prioritisation. Further updates have been provided by Anglian Water to the effect that the scheme (Buckingham WRC growth investment) was assessed by OFWAT but did not meet their criteria for any funded enhancement allowance. They are currently reviewing and analysing all of their final determination results and are issuing holding objections to new planning applications until the end of February, by which time an investment decision will be made. Officers have gone back to Anglian Water who have not provided an update other than to reiterate that any site with an existing consent, including outline, has a right to connect and they are obligated to manage those flows.
5.132 The applicants applied via a Section 73 application (24/02780/VRC) to vary the wording of condition 13 of permission 16/00151/AOP relating to foul drainage. This application requested to remove the first part of the condition but to retain the second part which requires confirmation that the scheme and programming of any wastewater upgrades required to accommodate the additional flows from the development have been agreed with Anglian Water; and all wastewater upgrades required to accommodate the additional flows have been completed prior to the occupation of the development. This application has been approved.
5.133 It is considered that the development could be brought forward and its need accommodated within the capacity of the sewerage undertaker's asset at Buckingham Water Recycling Centre, in time for the first occupation of the development as set out in the amended condition 13. It is important to note that Anglian Water raised no objections to the application on the basis that their asset at Buckingham WRC is still protected. On this basis this application was supported and condition 13 has been amended and this is now reflected in the description of this application.
5.134 Anglian Water have confirmed that they are already obliged to accommodate the permission for the outline development of this site for up to 170 dwellings. Whilst the timeline and funding for the upgrades to the Buckingham WRC are not known at this time, the condition relating to foul drainage requires provision to be made prior to occupation.
5.135 Notwithstanding the above, Officers have taken the representations received on this matter into account, however, the comments made do not change the conclusions reached. It remains the situation that Anglian Water are obliged to accommodate the development which has planning permission and through a funded scheme (to be determined by Anglian Water) of improvements to the Buckingham WRC. There is a real prospect therefore that these upgrades will take place and that there is time for this matter to be resolved and to enable the development to be occupied, which is the trigger for the provision of the foul water scheme to serve the development as set out in condition 13 of permission 24/02780/VRC. Therefore, there is no planning reason why the determination of this reserved matters application cannot proceed on this basis.
5.136 Having regard to the above matters, it is considered that the development could be appropriately flood resilient, that surface water can be accounted for and there would be sufficient capacity in the water supply and further that the foul drainage for the development would be adequately catered for. As such the development would accord with policies I4 and I5 of the VALP and with the NPPF in this regard and as these matters should not attract any negative weight."
"5.203 As discussed in the Officer's report above, an application to vary the wording of condition 13 has been submitted and has been approved (24/02780/VRC) such that the necessary upgrades must be carried out prior to occupation of the development."
Supplementary OR
"Little prospect of Buckingham Water Recycling Centre being upgraded for years, condition 13 is unachievable."
The Committee meeting
"what I'll explain is what I do know at the moment… so their funding has been approved by it's £11 billion over the next five years…..of that £11 billion, there's £280 million that has been attributed to …. 67 sewage treatment centres around their area…. basically the details of what is going to be spent at each treatment centre is not available as yet. And I believe that …the figure that's going to be invested at Buckingham, ….as I understand it, that detail will be provided by the end of ….February. Sorry. So at the moment… we know there's going to be some work in Buckingham, the amount that's going to be spent is unknown at the moment, but they are duty bound as you have an outline planning permission to provide that volume down at the treatment works. But obviously, they've got to take a view on the whole of Buckingham that's going to be using that facility."
"Subsequent to your application that was valid on the 25th May 2023 and in pursuance of their powers under the above mentioned Act and Orders, Buckinghamshire Council as Local Planning Authority HEREBY GRANT APPROVAL to the access, appearance, landscaping and scale to:-
Reserved matters being sought for appearance, landscaping, layout and scale for 153 dwellings on land off Walnut Drive and Foscote Road and discharge of condition 22 (biodiversity net gain) and condition 8 (CMP) of outline approval 16/00151/AOP, as varied by application 24/02780/VRC (condition 13 - Foul water drainage scheme) approved on the 10th December 2024
AT:-
Land Off Walnut Drive And Foscote Road Maids Moreton Buckinghamshire MK18 1QQ
Subject to the following conditions and reasons
….."
Planning history: Wood
Wildfish
is also relevant to the Wood claim. I set out below the planning history specifically in regard to biodiversity net gain, which is raised in Grounds 1 and 2 of the Wood claim.
OPP and Defra 2.0 metric
Previous judicial review
RMA Application
"4.0 Conclusions
4.1 The proposed development aims to retain areas of ecological value where possible and proposed soft landscaping should more than mitigate for unavoidable losses of existing habitats. The overall development will provide a net gain of 3.04 habitats units (10.04%) and an additional 1.25 hedgerow/linear units (19.44%) and therefore complies with the Local Planning requirements and Condition 22 of the Outline planning permission.
4.2 The net gain provided for both habitats and linear features exceeds the 10% minimum standard set through by the mandating of Part 6 of the Environment Act on 12 February 2024. This net gain was offered in advance of the mandatory requirement and without a regional or policy requirement for biodiversity net gain. Consequently, the commitment to a net gain for habitats and linear features, exceeding that required by the Environment Act or local policy requirement, on land which is of low ecological value is a positive benefit of the proposals and should be considered as such when undertaking the planning balance exercise."
"Ecology
5.139 VALP Policy NE1 seeks to ensure the protection and enhancement of biodiversity. A net gain in biodiversity will be sought on minor and major developments. These gains must be measurable using best practice in biodiversity and green infrastructure accounting. Policy MME1 of the MMNP states that development proposals should provide a measurable biodiversity net gain and not have an unacceptable impact on flora, habitats or biodiversity and take opportunities to enhance habitats and green infrastructure.
5.140 NPPF paragraph 180 states that planning decisions should contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes, sites of biodiversity or geological value and soils and minimising impacts on and providing net gains for biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures.
5.141 The Environment Act 2021 introduced the mandatory need for biodiversity net gain (BNG) requiring developments such as this to provide at least a 10% net gain in biodiversity. The outline application was granted planning permission prior to this requirement coming into effect, however, condition 22 of the permission requires the following:
Prior to commencement of development updated Biodiversity Net Gain Calculations must be submitted and be approved in writing by the local planning authority, alongside the Ecological Mitigation, Compensation and Enhancement Plan and the Landscape and Ecology Management Plan. The calculations must be undertaken using the Defra 2 metric and guidance and result in a net gain in both habitat and hedgerow units of at least 10% having regard to net gain being delivered across the overall development site.
Reason: To comply with the requirements of Policies D-MMO006 and NE1 of the Vale of Aylesbury Local Plan and the NPPF.
5.142 The outline application was accompanied by an Ecological Enhancement Plan, a Biodiversity Net Gain Assessment and biodiversity metrics. The metrics at that time indicated that the development could provide a net gain of 11.51% and in terms of linear features and the hedgerows, given the loss of such features where access points were provided for example, a net loss of -0.96 hedgerow units. However, at that time it was noted that further mitigation for hedgerow loss could be provided at the detailed design stage through the provision of more hedgerow or native species planting which could be secured through the Ecological Enhancement Plan and landscaping details.
5.143 There have been several iterations of the ecological information and reports accompanying the application submitted by the applicants to address inconsistencies in the information or to provide updates following amendments made to the planning proposal. These have been reviewed by the Council's Ecology Officer.
Biodiversity Net Gain
5.144 Condition 22 of the outline permission which is proposed to be discharged as part of this reserved matters application, requires updated Biodiversity Net Gain Calculations to be submitted to and approved in writing by the LPA alongside the Ecological Mitigation, Compensation and Enhancement Plan (the EDS) and the Landscape and Ecology Management Plan.
5.145 The BNG figures have been updated with regards to habitats and hedgerows as a number of concerns were raised by the Council's Ecology Officer regarding the detail submitted, in respect of seed mix, soft landscaping proposals, consistencies with other reports, errors in the calculations and requests were made for detail to assist in providing clarity for how the figures have been arrived at. The applicant has provided further clarification over sealed/impermeable areas and inconsistencies throughout and other matters and assessor comments have been added to the metric to give clarity to this document. Further technical notes, responses and an addendum have been provided to clarify the changes made and these matters are discussed below. These have addressed a number of matters raised as a result of reviewing Rev. N of the Metric and subsequent responses and the Addendum provided by the Applicant and have been resolved to the satisfaction of the Council's Ecologists, as set out below.
Reduction in overall BNG baseline site area:
……
Changes to the baseline habitat areas as a result of identification of errors:
……
Hedgerow Creation Multiplier
5.153 Concerns had been raised by third parties in the use of the multiplier. The Council's Ecology Officer considers the response prepared by the applicant to provide a satisfactory justification for the use of 0.67 as the difficulty multiplier in the calculation of proposed hedgerow units. Principally, the multipliers in the Metric cannot be changed, these are protected cells that are pre-defined as set by Defra/Natural England. It is acknowledged that the Technical Supplement referred to by third parties indicates a difficulty multiplier of 0.1 (meaning high difficulty) for the creation of native species rich hedgerows. However, and pertinently, updated versions of the metric apply a difficulty multiplier for creation of native species rich hedgerows of 1.0. Therefore, in contrast to the concern raised by third parties, the use the Defra 2.0 metric that applies a multiplier of 0.67 provides a more precautionary assessment of the post-development value for hedgerows compared with current versions of the metric. Officers have considered this matter and are satisfied with the approach.
Other matters relating to BNG Assessment:
…….
5.155 The submitted updated metric (version N) states that the net gain for area habitats would be 3.04 units or 10.04%. This would be marginally in excess of that required in condition 22 of the outline permission. Clarity over the hedgerows has also been provided, in particular to confirm that the hedgerows within the site are largely to be retained. The details now show that based on the development coming forward there would be an increase of 1.25 hedgerow units resulting in an increase of 19.44%.
5.156 It is worth noting that the current application was submitted prior to the implementation of statutory biodiversity gain duty under the Environment Act 2021 that now requires development to deliver a minimum of 10% biodiversity gain (with exemptions). The current applications are assessed against policy and on the basis that Condition 22 requires the delivery of 10% BNG onsite. If the same development proposals (i.e. post development habitats) were to be assessed using the Statutory Biodiversity Metric using current baseline habitats (as they are onsite today), then the calculations would show a much greater increase in biodiversity than 10%. This is in part due to changes in the metric, but also due to the lower value nature of the baseline habitats. It is relevant to note that under the current applications, the proposed development stands to deliver a greater value for biodiversity than would be required by law if assessed using the Statutory Biodiversity Metric and up to date baseline conditions.
5.157 In addition, planning condition 23 requires the developer to submit a post-construction BNG Audit Report. The condition states that this must be produced in line with the details set out in the approved LEMP. Therefore, prior to the occupation of the last five houses to be built, the developer will be held accountable for delivering the habitats and hedgerows onsite that are currently proposed.
5.158 Having regard to the above matters and noting the detail of the submitted documents, it is considered that the requirements of condition 22 have been addressed and as such this condition may be discharged in so far as it requires the submission of information.
5.159 It is noted that in the Natural England consultation response, they advise that the statutory biodiversity metric should be used, not Metric 2.0 which has been superseded. The outline application was assessed using the Metric 2.0 and as such it would be appropriate to continue with the use of this metric for consistency and on this basis condition 22 of the outline permission states that the calculations must be undertaken using the Defra 2 metric and guidance."
"Summary
No Objection
The revised BNG Metric (Revision N January 2025) and accompanying BNG Assessment Report (Rev N January 2025) indicate the development proposals will result in a net gain in biodiversity units for both habitat units (10.04%) and hedgerow units (19.44%).
Conclusion
Numerous issues have been raised over the past iterations of the BNG Metric. Concerns have been raised not only by the Council's Ecology Officers but also by third parties.
In the latest revision of the BNG submissions (Revision N), the applicant has undertaken a very detailed review of the information supporting the metric. This has included identifying errors that have now been rectified and satisfactorily explained.
Following intense scrutiny, by the Council's Ecology Officers, of the changes in Rev N of the BNG submissions it is considered that Rev N contains accurate and reliable information.
Revision N demonstrates that the development can deliver 10.04 % BNG in habitat units and 19.44% in hedgerow units. It is therefore concluded that it is likely that the development proposals meet the requirements of condition 22.
The discussion below provides a detailed account of the changes and understanding of the applicant's explanation for the changes. It also sets out concerns raised by the Council's Ecology Officers that were subsequently addressed.
……
Discussion
Context - Rationale for revised submissions in relation to BNG
In January 2025, the applicant submitted the above listed revised submissions in response to comments received by third parties in December 2024. The comments concerned two main issues:
A. The area of the site used in the Biodiversity Net Gain calculation being larger (8.88 ha) than the site area given in the Officers Report (8.649 ha), and;
B. The multiplier used to calculate units for the creation of native species rich hedgerows.
The FPCR Technical Note Biodiversity Net Gain, 17 January 2025, addresses the first point regarding the site area. As set out in the note, a revised BNG Metric and accompanying BNG Assessment Report (Rev N) has been submitted.
The FPCR Technical Note Biodiversity Net Gain (Addendum), 29 January 2025, addresses the second of the above points. The Addendum also provides clarification of matters raised by the Ecology Officers on the January submissions, which are discussed under a separate section below.
…..
B. Hedgerow Creation Multiplier
Section 6 of FPCR's Addendum 29.01.25 sets out the applicant's response to a concern raised by third parties.
The Ecology Officers consider the response prepared by the applicant to provide a satisfactory justification for the use of 0.67 as the difficulty multiplier in the calculation of proposed hedgerow units. Principally, the multipliers in the Metric cannot be changed, these are protected cells that are pre-defined as set by Defra/Natural England. It is acknowledged that the Technical Supplement referred to by third parties indicates a difficulty multiplier of 0.1 (meaning high difficulty) for the creation of native species rich hedgerows. However, and pertinently, updated versions of the metric apply a difficulty multiplier for creation of native species rich hedgerows of 1.0 (low difficulty of creation). Therefore, it is agreed, in contrast to the concern raised by third parties, the use the Defra 2.0 metric that applies a multiplier of 0.67 provides a more precautionary assessment of the post-development value for hedgerows compared with proceeding versions of the metric.
……
Final Notes
It is in our professional opinion worth taking into consideration the following points.
The current applications (23/01636/ADP and 23/02826/ADP) were submitted prior to the implementation of statutory biodiversity gain duty under the Environment Act 2021, which now requires development to deliver a minimum of 10% biodiversity gain (with exemptions). The current applications are assessed against policy and on the basis that Condition 22 requires the delivery of 10% BNG onsite. If the same development proposals (i.e. post-development habitats) were to be assessed using the Statutory Biodiversity Metric using current baseline habitats (as they are onsite today), then the calculations would show a much greater increase in biodiversity than 10%. This is in part due to changes in the metric, but mainly due to the lower value nature of the baseline habitats. The point being made is that, under the current applications, the proposed development stands to deliver a greater value for biodiversity than would be required by law if assessed using the Statutory Biodiversity Metric and up to date baseline conditions.
In addition, planning condition 23 requires the developer to submit a post-construction BNG Audit Report. The condition states that this must be produced in line with the details set out in the approved LEMP. Therefore, prior to the occupation of the last five houses to be built, the developer will be held accountable for delivering the habitats and hedgerows onsite that are currently proposed.
……"
"Ecology:
- Inaccurate assessment of BNG in respect of sealed surfaces, street trees, landscaping, ponds
- No confidence that 10% BNG can be achieved
- Calculations have been manipulated to produce net gain
- Double counting of urban street trees and grassland
- Metrics do not reflect 0.14ha for LEAP/NEAP
- No plans to support proposed increase in frontages/verges
- Reduction in new trees not reflected in metric
- Lack of tree pits and underground apparatus means street trees should not form part of calculations
- No evidence that the protected species surveys have been undertaken to an acceptable standard
- Lack of meaningful detail in Natural England's advice
- Insufficient detail in CEMP
- BNG calculations are based on an incorrect site area of 8.88ha.
- The (BNG) multiplier for the 'Difficulty of Creation' (0.67) which has been used to calculate the biodiversity units of new hedgerow is incorrect.
- The (BNG) value used is that for enhancement, not creation.
- BNG methodology does not allow the contribution of urban street trees in a non-urban context.
- BNG reports conflict with CEMP and LEMP
- Loss of hedgerow
- Written confirmation from BC Ecologist confirming that objection is now withdrawn and that the planning condition 22 can be discharged is required."
i) FPCR's technical notes and changes to baseline are presented as fact when they provide no context or evidence that is credible.
ii) No confirmation from the Council Ecologist that the new information is acceptable and condition 22 can be released
Statutory framework
Planning
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.
…
(5) Planning permission must not be granted under this section for the development of land in England] to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which—
(a) a development must be started;
(b) an application for approval of reserved matters (within the meaning of section 92) must be made."
"6. An application for approval of reserved matters—
(a) must be made in writing to the local planning authority and give sufficient information to enable the authority to identify the outline planning permission in respect of which it is made;
(b) must include such particulars, and be accompanied by such plans and drawings, as are necessary to deal with the matters reserved in the outline planning permission; and
(c) except where the authority indicate that a lesser number is required, or where the application is made using electronic communications, must be accompanied by 3 copies of the application and of the plans and drawings submitted with it."
""reserved matters" in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect which details have not been given in the application:
(a) access;
(b) appearance;
(c) landscaping;
(d) layout; and
(e) scale;"
"Applications made under a planning condition
27.—(1) Subject to paragraph (3), an application for any consent, agreement or approval required by a condition or limitation attached to a grant of planning permission must—
(a) be made in writing to the local planning authority and must give sufficient information to enable the authority to identify the planning permission in respect of which it is made; and
(b) include such particulars, and be accompanied by such plans and drawings, as are necessary to deal with the application."
Council meetings
"(5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which—
(a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and
(b) have, in his opinion, been relied on to a material extent in preparing the report,
but do not include any published works."
Water Industry Act 1991
"The Water Industry Act 1991
"94 General duty to provide sewerage system
(1) It shall be the duty of every sewerage undertaker--
(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers and any lateral drains which belong to or vest in the undertaker as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.
. . . "
"106 Right to communicate with public sewers
(1) Subject to the provisions of this section--
(a) the owner or occupier of any premises, or
(b) the owner of any private sewer which drains premises,
shall be entitled to have his drains or sewer communicate with the public sewer of any sewerage undertaker and thereby to discharge foul water and surface water from those premises or that private sewer."
"23. The right to connect to a public sewer afforded by section 106 of the 1991 Act and its predecessors has been described as an "absolute right". The sewerage undertaker cannot refuse to permit the connection on the ground that the additional discharge into the system will overload it. The burden of dealing with the consequences of this additional discharge falls directly upon the undertaker and the consequent expense is shared by all who pay sewerage charges to the undertaker. Thus in Ainley v Kirkheaton Local Board (1891) 60 LJ (Ch) 734 Stirling J held that the exercise of the right of an owner of property to discharge into a public sewer conferred by section 21 of the 1875 Act could not be prevented by the local authority on the ground that the discharge was creating a nuisance. It was for the local authority to ensure that what was discharged into their sewer was freed from all foul matter before it flowed out into any natural watercourse."
"27. It follows that the duty imposed on Welsh Water by section 94 of the 1991 Act requires them to deal with any discharge that is made into their sewers pursuant to section 106 It does not follow, however, that where a new development is constructed, Welsh Water are obliged, at their own expense, to construct a sewer to accept the sewage from the development if one does not already exist. Section 98 entitles a developer, among others, to requisition a public sewer, or a lateral drain linking with a public sewer, in order to service the buildings being constructed, but on terms that he meets the costs of so doing. Section 101 provides that the place or places where the public sewer and drain are to be located are to be agreed between the requisitioner and the undertaker or, in default of agreement, to be determined by OFWAT."
"31. The scheme of the legislation, as reflected in the above provisions and as affecting a developer, can be summarised as follows:
i) Where connection of a development to a public sewer requires consequential works to accommodate the increased load on the public sewer, the cost of these works falls exclusively upon the undertaker.
ii) Where works are done, whether by or on the requisition of the developer, that will be used exclusively by the development, the costs of such works fall exclusively on the developer.
iii) In specified circumstances the undertaker is entitled to require the developer to carry out the works in a manner other than that proposed by the developer, or to alter the works carried out by the developer. In either case the undertaker has to bear the costs involved.
iv) Costs that are borne by the undertaker are passed on to all who pay sewerage charges. These include those who occupy the houses in the development."
"41. The real problem that is demonstrated by the facts of this case arises out of the "absolute right" conferred by section 106 of the 1991 Act on the owner or occupier of premises to connect those premises to a public sewer without any requirement to give more than 21 days notice. While this might create no problem in the case of an individual dwelling house, it is manifestly unsatisfactory in relation to a development that may, as in the present case, add 25% or more to the load on the public sewer. The public sewer may well not have surplus capacity capable of accommodating the increased load without the risk of flooding unless the undertaker has received sufficient advance notice of the increase and has been able to take the necessary measures to increase its capacity."
"43. The Court of Appeal suggested that the practical answer to this problem lies in the fact that the building of a development requires planning permission under the Town and Country Planning Act 1990. The planning authority can make planning permission conditional upon there being in place adequate sewerage facilities to cater for the requirements of the development without ecological damage. If the developer indicates that he intends to deal with the problem of sewerage by connecting to a public sewer, the planning authority can make planning permission conditional upon the sewerage authority first taking any steps necessary to ensure that the public sewer will be able to cope with the increased load. Such conditions are sometimes referred to as Grampian conditions after the decision of the House of Lords in Grampian Regional Council v Secretary of State for Scotland [1983] 1 WLR 1340. Thus the planning authority has the power, which the sewerage undertaker lacks, of preventing a developer from overloading a sewerage system before the undertaker has taken steps to upgrade the system to cope with the additional load."
Legal principles
Judicial review
The development plan and material considerations
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Irrationality
"98. …. The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of 'irrationality' or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is 'so unreasonable that no reasonable authority could ever have come to it': see Associated Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, 233–234. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police [1999] 2 AC 143, 175, per Lord Steyn. The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it—for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error."
Sufficient inquiry
"Duty to carry out sufficient inquiry/Tameside duty
99. A public body has a duty to carry out a sufficient inquiry prior to making its decision. This is sometimes known as the 'Tameside' duty since the principle derives from Lord Diplock's speech in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, where he said (at page 1065B):
"The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?".
100. The following principles can be gleaned from the authorities:
1. The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.
2. Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R(Khatun) v Newham LBC [2005] QB 37 at paragraph [35], per Laws LJ).
3. The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC (1990) 22 HLR 406).
4. The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council (1989) 21 HLR 301; cited with approval by Laws LJ in (R(Khatun) v Newham LBC (supra) at paragraph [35]).
5. The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D).
6. The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 466G)."
Officer reports
"42 The principles on which the court will act when criticism is made of planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in v Selby District Council, Ex p Oxton Farms [2017] PTSR 1103: see, in particular, the judgment of Judge LJ. They have since been confirmed several times by this court, notably by Sullivan LJ in R (Siraj) v Kirklees Metropolitan Borough Council [2011] JPL 571, para 19, and applied in many cases at first instance: see, for example, the judgment of Hickinbottom J in R (Zurich Assurance Ltd (trading as Threadneedle Property Investments)) v North Lincolnshire Council [2012] EWHC 3708 (Admin) at [15].
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge: see the judgment of Baroness Hale of Richmond JSC in R (Morge) v Hampshire County Council [2011] PTSR 337, para 36 and the judgment of Sullivan J in R v Mendip District Council, Ex p Fabre [2017] PTSR 1112, 1120. Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave see the judgment of Lewison LJ in R (Palmer) v Herefordshire Council [2017] WLR 411, para 7. The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way—so that, but for the flawed advice was given, the committee's decision would or might have been different—that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading—misleading in a material way—and advice that misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R (Loader) v Rother District Council [2017] JPL 25 or has plainly misdirected the members as to the meaning of a relevant policy: see, for example, R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43. There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law: see, for example, R (Williams) v Powys County Council [2018] 1 WLR 439. But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
"62 I too agree with Lindblom LJ's judgment, but would add a few words from a more general perspective. In the course of the argument, one could have been forgiven for thinking that the contention that the presumption in favour of sustainable development in the National Planning Policy Framework had been misapplied in the planning officer's report turned on a minute legalistic dissection of that report. It cannot be over-emphasised that such an approach is wrong and inappropriate. As has so often been said, planning decisions are to be made by the members of the planning committee advised by planning officers. In making their decisions, they must exercise their own planning judgment and the courts must give them space to undertake that process.
63 Appeals should not, in future, be mounted on the basis of a legalistic analysis of the different formulations adopted in a planning officer's report. An appeal will only succeed, as Lindblom LJ has said, if there is some distinct and material defect in the report. Such reports are not, and should not be, written for lawyers, but for councillors who are well-versed in local affairs and local factors. Planning committees approach such reports utilising that local knowledge and much common sense. They should be allowed to make their judgments freely and fairly without undue interference by courts or judges who have picked apart the planning officer's advice on which they relied."
Reasons
"In the case of a decision of a local planning authority that function will normally be performed by the planning officers' report. If their recommendation is accepted by the members, no further reasons may be needed. Even if it is not accepted, it may normally be enough for the committee's statement of reasons to be limited to the points of difference. However, the essence of the duty remains the same, as does the issue for the court: that is, in the words of Lord Bingham MR in the Clarke Homes case, whether the information so provided by the authority leaves room for "genuine doubt … as to what (it) has decided and why.""
WILDFISH:
GROUNDS 1 and 2
Wildfish's
claim overlap and so may be conveniently considered together.
Wildfish's
submissions
Ground 1
Wildfish
divided Ground 1 into two limbs, as follows:
i) The Council erred in law in approving a substantial alteration to the application for RMA and discharge of conditions which substantially altered the character of the application; and
ii) The Council unlawfully failed to consult on the application for RMA, as amended.
Wildfish
submitted that in the first RMA application, made on 25 May 2023, IP1 applied for the discharge of condition 13, seeking pre-commencement approval of the programme of waste water treatment works.
Ground 2
Wildfish
submitted that the RMA application was an application to discharge reserved matters in the OPP. It was not open to the Council to approve reserved matters on the OPP "as varied by" the section 73 permission. A separate application to approve reserved matters under the section 73 permission was required. The Council's approach unlawfully circumvented the prohibition in subsection 73(5) TCPA 1990 on extending the time limit for discharge of reserved matters on an outline permission. It was ultra vires the statutory scheme and irrational.
Conclusions
Condition 13: not a reserved matter
Wildfish
no longer argued that condition 13 concerned a reserved matter.
"What is an outline planning application?
An application for outline planning permission allows for a decision on the general principles of how a site can be developed. Outline planning permission is granted subject to conditions requiring the subsequent approval of one or more 'reserved matters'.
(Paragraph: 005 Reference ID: 14-005-20140306. Revision date: 06 03 2014)
What are reserved matters?
Reserved matters are those aspects of a proposed development which an applicant can choose not to submit details of with an outline planning application, (i.e. they can be 'reserved' for later determination). These are defined in article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 as:
'Access' …..
'Appearance' ……
'Landscaping'……
'Layout' ……
'Scale' ……
(Paragraph: 006 Reference ID: 14-006-20140306. Revision date: 06 03 2014)
Is there a time limit for making an application for approval of reserved matters?
Under section 92 of the Town and Country Planning Act 1990, applications for approval of reserved matters must be made within a specified time-limit, normally 3 years from the date outline planning permission was granted.
(Paragraph: 007 Reference ID: 14-007-20140306. Revision date: 06 03 2014)"
Wildfish's
skeleton argument, paragraph 17, the effect of the amendment was not "to remove the original OPP foul water condition 13 from the scope of the reserved matters for which the applicant was seeking discharge." Condition 13 was never within the scope of the reserved matters.
The effect of a grant of permission under section 73 TCPA 1990
"What is the effect of a grant of permission under section 73?
Permission granted under section 73 takes effect as a new, independent permission to carry out the same development as previously permitted subject to new or amended conditions. The new permission sits alongside the original permission, which remains intact and unamended. It is open to the applicant to decide whether to implement the new permission or the one originally granted.
A decision notice describing the new permission should clearly express that it is made under section 73. It should set out all of the conditions imposed on the new permission, and, for the purpose of clarity restate the conditions imposed on earlier permissions that continue to have effect."
(Paragraph: 015 Reference ID: 17a-015-20140306)
"9. The background to this section (formerly section 31A of the Town and Country Planning Act 1971) was described by Sullivan J in Pye v Secretary of State for the Environment, Transport and the Regions [1998] 3 PLR 72:
"… Prior to the enactment of (what is now) section 73, an applicant aggrieved by the imposition of the conditions had the right to appeal against the original planning permission, but such a course enabled the Local Planning Authority in making representations to the Secretary of State, and the Secretary of State when determining the appeal as though the application had been made to him in the first instance, to 'go back on the original decision' to grant planning permission. So the applicant might find that he had lost his planning permission altogether, even though his appeal had been confined to a complaint about a condition or conditions.
It was this problem which section 31A, now section 73, was intended to address …While section 73 applications are commonly referred to as applications to 'amend' the conditions attached to a planning permission, a decision under section 73(2) leaves the original planning permission intact and un-amended. That is so whether the decision is to grant planning permission unconditionally or subject to different conditions under paragraph (a), or to refuse the application under paragraph (b), because planning permission should be granted subject to the same conditions.
In the former case, the applicant may choose whether to implement the original planning permission or the new planning permission; in the latter case, he is still free to implement the original planning permission. Thus, it is not possible to 'go back on the original planning permission' under section 73. It remains as a base line, whether the application under section 73 is approved or refused, in contrast to the position that previously obtained.
The original planning permission comprises not merely the description of the development in the operative part of the planning permission …but also the conditions subject to which the development was permitted to be carried out …"
This passage was approved by the Court of Appeal in Powergen United Kingdom plc v Leicester City Council [2000] JPL 1037, para 28, per Schiemann LJ.
10. Sullivan J's comment that such applications are "commonly" referred to as applications to "amend" the conditions was echoed by Schiemann LJ, who noted, at para 1, that such an application is commonly referred to as "an application to modify conditions imposed on a planning permission". This usage is also consistent with the wording used in the statute under which section 31A was originally introduced. It was one of various "minor and consequential amendments" introduced by section 49 and Schedule 11 of the Housing and Planning Act 1986, described as "(d) applications to vary or revoke conditions attached to planning permission".
11. It is clear, however, that this usage, even if sanctioned by statute, is legally inaccurate. A permission under section 73 can only take effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. This was explained in the contemporary circular 19/86, para 13, to which Sullivan J referred. It described the new section as enabling an applicant, in respect of "an extant planning permission granted subject to conditions", to apply "for relief from all or any of those conditions". It added:
"If the authority do decide that some variation of conditions is acceptable, a new alternative permission will be created. It is then open to the applicant to choose whether to implement the new permission or the one originally granted."
12. Although the section refers to "development" in the future, it is not in issue that a section 73 application can be made and permission granted retrospectively, that is in relation to development already carried out. …"
Wildfish
criticised the Council for describing the section 73 permission as an amendment or variation of the OPP. However, as Lord Carnwath held, at [33]:
"..... Once it is understood that it has been normal and accepted usage to describe section 73 as conferring power to "vary" or "amend" a condition, the reasonable reader would in my view be unlikely to see any difficulty in giving effect to that usage in the manner authorised by the section - that is, as the grant of a new permission subject to the condition as varied."
The amendment to the RMA application
"Finally, it is necessary to consider the question whether it was within the powers of the first respondent to call for the submission of further detailed plans and information, which would have the effect of amending the original application, notwithstanding the expiration of the time-limit of three years imposed by condition (2) of the outline permission for the application for approval of reserved matters….. [The appellant's] counsel was prepared to accept that amendment of an application must be permissible within the three-year period, considering that at any time within that period the applicant would be free to put in a fresh application. He maintained, however, that once the period had come to an end, no amendment whatever could validly be made. It is to be observed that neither in the Act of 1972 nor in the Order of 1975 is any procedure laid down for the manner in which applications of this nature are to be dealt with, apart from the provisions about entry in the register. This is not a field in which technical rules would be appropriate, there being no contested lis between opposing parties. The planning authority must simply deal with the application procedurally in a way which is just to the applicant in all the circumstances. That being so, there is no good reason why amendment of the application should not be permitted at any stage, if that should prove necessary in order that the whole merits of the application should be properly ascertained and decided upon. There is, however, one obvious limitation upon this freedom to amend, namely that after the expiry of the period limited for application for approval of reserved matters (which in this case was three years but which might be different-see section 39 of the Act of 1972) an amendment which would have the effect of altering the whole character of the application, so as to amount in substance to a new application, would not be competent. In this context it is to be noted that section 40(7) (b) of the Act of 1972 provides: "an application for approval of a reserved matter, if it is made after the date by which the conditions require it to be made, shall be treated as not made in accordance with the terms of the permission." This makes it clear that application for approval of all reserved matters must be made before the date fixed by the conditions. So an application which dealt with some only of the reserved matters could not competently be amended after that date so as to deal also with others."
"65 Although the relevant legislation contains no provision permitting the amendment of an application for planning permission, courts have recognised that amendments to such applications may be made. Initially the appellate committee so held in the context of an application for the approval of reserved matters that did not require public consultation: see Inverclyde District Council v Secretary of State for Scotland 1982 SLT 200, 204, per Lord Keith of Kinkel. Subsequently it was held that it was also possible to amend an application for planning permission, as it would not be in the public interest to deter developers from being receptive to sensible proposals for change, although the change might be so substantial that it would be impermissible even if there was consultation about it: see R (British Telecommunications plc) v Gloucester City Council [2002] 2 P & CR 33, paras 33—37, per Elias J. The substantive limitation on the nature of the changes that may be made by an amendment appears to be whether the change proposed is substantial or whether the development proposed is not in substance that which was originally applied for, whether or not others have been consulted about the change: see R (British Telecommunications plc) v Gloucester City Council, at paras 38—40; and Breckland District Council v Secretary of State for the Environment (1992) 65 P & CR 34, 41."
"Applications for approval under outline permission may be made either for all reserved matters at once, or individually. Even after details relating to a particular reserved matter have been approved, one or more fresh applications can be made for approval of alternative details in relation to the same reserved matter. Once the time-limit for applications for approval of reserved matters has expired, however, no applications for such an approval may be submitted."
Wildfish's
submission that the Council was acting ultra vires or irrationally by extending the time for which a reserved matters application could be made, thus circumventing the restriction in section 73(5) TCPA 1990. The section 73 permission did not extend the 18 month time limit for reserved matters imposed by condition 2 of the OPP, nor did it change the reserved matters which were being approved under the OPP. In any event, as condition 13 was not a reserved matter, the time limit in condition 2 never applied to it.
Wildfish's
grounds raise technical matters of form rather than substance. Their purpose is to mount a collateral attack on the Council's exercise of planning judgment in granting the section 73 permission, under which the pre-commencement condition was removed and the pre-occupation condition was retained.
Consultation
"75 When there is a statutory duty of consultation, the question whether re-consultation is required if there is a change to the proposal on which there has been consultation depends on what fairness requires. That will depend inter alia on the purposes for which the requirement of consultation is imposed, the nature and extent of any changes and their potential significance for those who might be consulted: see e g R (Stirling) v Haringey London Borough Council [2014] PTSR 1317, paras 23—24, per Lord Wilson JSC; and para 44, per Baroness Hale of Richmond DPSC and Lord Clarke of Stone-cum-Ebony JSC; and the Keep Wythenshawe Special case 148 BMLR 1, paras 73—75, per Dove J.
……
78 In considering whether it is unfair not to reconsult, in my judgment it is necessary to consider whether not doing so deprives those who were entitled to be consulted on the application of the opportunity to make any representations that, given the nature and extent of the changes proposed, they may have wanted to make on the application as amended.
……
85 It must none the less be borne in mind that what fairness requires in the circumstances falls to be determined by reference to the circumstances as they appeared to the authority at the relevant time (or as they ought to have appeared had the authority not acted unreasonably) and that it is not sufficient to establish that a decision is unlawful merely to show that it would have been better or fairer for there to have been re-consultation. "The test is whether the process has been so unfair as to be unlawful" see the Keep Wythenshawe Special case 148 BMLR 1, paras 77 and 87, per Dove J; and R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] PTSR 982, para 60."
"Consultation: legal principles
36 In R. (Plantagenet Alliance Ltd) v The Secretary of State for Justice [2014] EWHC 1662 (Admin), the Divisional Court, at paragraph 98 of its judgment, summarised the general principles concerning the duty to consult, as derived from the authorities. The Divisional Court noted, first, that there is no general duty to consult at common law and that the government of the country would grind to a halt if every decision-maker were required in every case to consult everyone who might be affected by his decision.
37 I would add here that, in the case of a democratically-elected public authority, such as the defendant, the courts will be particularly cautious about inferring that a duty to consult has arisen. As Laws LJ held in R. (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755 at paragraph 41, "Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest… Often they must balance different, indeed opposing interests across a wide spectrum. Generally, they must be the masters of procedure as well as substance…".
38 As held in Plantagenet Alliance, a duty to consult may arise where there has been an established practice of consultation or where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Here again Bhatt Murphy is relevant. At paragraph 49, Laws LJ held that where there has been no assurance either of consultation or as to the continuation of the policy in question, "there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power."
Wildfish
had the opportunity to challenge the grant of the section 73 permission, and went as far as sending pre-action letters to the Council, but eventually decided not to do so.
Wildfish
and the Maids Moreton and Foscote Action Group (of which Ms Wood was an active member) were closely following the progress of this planning application. I have no doubt that they knew when the Committee meeting would take place and that they were monitoring the Council's website and identifying new documents as they were posted.
Wildfish
was taking a pro-active role in obtaining information from Ofwat and Anglian. The objectors had the benefit of seeing the very detailed OR and the material annexed to it (including consultation responses), which were published on the website on 5 February 2025, in good time for the meeting on 13 February 2025, when the concerns were discussed. The Supplementary OR indicated that there were eleven further objections lodged after the OR was published.
Wildfish
and other objectors were already familiar with the potential effect of the section 73 permission and had had the opportunity to comment on it. The particular concerns raised by
Wildfish
in this claim, namely, that the development might be built out but unoccupied, or occupied and resulting in raw sewage overspill, were not new. The Council had already explained why they did not consider these concerns to be justified.
Wildfish
claim do not succeed. The application to refuse relief under section 31(2A) of the Senior Courts Act 1981 does not arise.
WOOD: GROUND 3
Wildfish
claim.
Ms Wood's submissions
Wildfish
claim.
i) The number of dwellings was reduced from 163 to 153.
ii) A large area of woodland stretching the length of the northeastern edge of the development (approximately 300m x 50m) was reduced by approximately 50% and removed entirely from the easternmost field. At the OPP stage, this woodland boundary was relied upon as part of the mitigation strategy.
iii) The number of urban street trees to be planted was increased from 47 to 169, with these now proposed to be spread across the entirety of the site, including the landscape buffers and biodiversity areas, not just the urban area of the development.
iv) The House Pack submitted for the initial application and resubmitted in October 2023 and March 2023, with minor amendments, was entirely replaced.
v) The number of drainage ponds was reduced from 3 to 2, accompanied by a different drainage strategy, with the latter document showing an increase in the site area from 8.64ha to 8.88ha.
"2.12 A number of amended plans and details, including several updates to the BNG metric and report, and also layout and landscaping have been submitted. Amendments have been sought to correct inconsistencies and to seek to achieve the most appropriate development of the site. The LPA has sought to work proactively with the applicant as required by the NPPF. The LPA has consulted upon the amendments as appropriate to ensure transparency in the decision-making process. It is at the discretion of the Local Planning Authority, as decision maker, over whether to accept amendments to validated planning applications prior to determination, as set out in the National Planning Policy Guidance."
Conclusions
"It is at the discretion of the Local Planning Authority, as decision maker, over whether to accept amendments to validated planning applications prior to determination, as set out in the National Planning Policy Guidance."
i) A change in the number of dwellings originally proposed from 163 to 153 (i.e. a reduction of just over 6%) cannot be said to be "substantial" according to the ordinary meaning of the term. The OPP granted permission for "up to 170" dwellings. That wording imposed a maximum and envisaged that the number could turn out to be smaller.
ii) The reduction of the originally proposed woodland habitat occurred prior to the amendment in October 2024. Mr Goodman, Senior Director at FPCR Consultants, described at paragraph 13 and 14 of his witness statement ("Goodman WS/13 - 14") how amended plans and reports were submitted to the Council on 16 October 2023, including the changes to the woodland habitat. The OPP was determined in the knowledge that landscaping would be finalised at reserved matters stage. Whether the landscape mitigation remained adequate was a matter of planning judgment to be exercised at the point when the RMA application was determined.
iii) The additional urban street trees were always shown on the layout and landscaping plans (see Goodman WS/16 - 17).
iv) There were changes to the house pack, resulting in one document for market housing and a separate document for affordable housing.
v) The removal of a balancing pond to the northwest of the Site occurred prior to the October 2024 amendment. Goodman WS/13 - 14, describes its inclusion in the amended plans and reports submitted to the Council on 16 October 2023.
WILDFISH:
GROUND 3
Wildfish's
submissions
Wildfish
made a number of different criticisms of the Council:
i) Officer advice to Members was mistaken and irrational in advising that condition 13 could be discharged in time to enable the development to be occupied, as the timeline and funding for the upgrades to Buckingham WRC were not known. There was no rational basis for the assumption that condition 13 would ever be discharged.
ii) The Council failed to discharge the Tameside duty of inquiry. Officers did not seek the views of Anglian as to the timeline for the upgrades to Buckingham WRC in the absence of Ofwat funding. Nor did the Council inquire at all into the potential consequences of connecting the development to the existing sewerage system in the absence of upgrades (i.e. additional raw sewage discharges).
iii) At the hearing
Wildfish
did not pursue the allegation in paragraph 60 of its skeleton argument that officers should have advised Members that there was a breach of the requirement of Policy MMO006 for an updated assessment of wastewater treatment works capacity needs, to identify the needs for infrastructure upgrades and how and when they would be carried out.
iv) By failing to disclose or explain the Ofwat email, Members were misled, a mandatory material consideration was left out of account, and a background document was not listed, in breach of section 100D LGA 1972.
v) Officer advice to Members to the effect that Anglian was obliged to accommodate the foul waste and surface water requirements of the development because of the outline planning permission was misleading. Barratt Homes Ltd states only that sewerage undertakers are obliged to accept new connections when new development is built out, not simply when it has outline planning permission, referring to section 106(1) of the Water Industry Act 1991 ("WIA 1991").
vi) This advice can only relevantly have been given in order to direct members that the lack of necessary upgrades at Buckingham WRC would not hinder the development at the Site. It was therefore an argument that relied on a breach of condition 13 and the creation of new flows into the Buckingham WRC in circumstances where it was already over-capacity. This over-capacity means that additional flows will aggravate the adverse effect of untreated sewage being discharged into the adjacent rivers and waterbody network (principally the Ouse), by increasing such discharges. The adverse effect on the rivers and waterbody network of additional untreated sewage discharges was an obviously material consideration that was not addressed by the Council.
vii) Members were never advised, as they ought to have been, that the consequence of accepting that the development might be connected to the sewage network prior to the necessary upgrades would be increased untreated discharges. Nor were they advised, as they ought to have been, that the amended condition 13 would be redundant once the development had been built out and the developer's right to connect had arisen. They were therefore significantly misled by officers.
viii) The suggestion at OR/5.131 that Anglian is obligated to manage the flows itself is misleading. The suggestion is that Anglian will provide the necessary upgrades to the Buckingham WRC, rather than simply allowing the untreated discharges to occur. OR/5.132 likewise suggests that the flows from the Site would have to be accommodated "within the capacity of [Buckingham WRC] in time for the first occupation." OR/5.135 similarly states that Anglian are "obliged" to "accommodate the development which has planning permission and through a funded scheme… of improvements to the Buckingham WRC." This advice was repeated orally at the meeting. These statements all confuse (i) Anglian being obliged to receive the sewage once the development is connected up pursuant to the statutory obligation to connect; with (ii) any obligation on Anglian to undertake the upgrades in time for that connection. The first of these propositions is correct, the second is not.
ix) In its Detailed Grounds of Defence, at paragraphs 71 – 73, the Council relied upon Anglian's obligation to manage the flows from the development pursuant to section 94 WIA 1991. This is incorrect as section 94 is a general duty and not one that arises upon connection to a new development. In any event, the reference to being obliged to manage flows was obviously a reference to the obligation under section 106 WIA 1991.
x) For all these reasons, the advice to Members was significantly misleading and the OR also failed to give adequate reasons that properly grappled with the issues.
Conclusions
Legal principles
Wildfish's
challenge
Wildfish
alleged. Nor do I consider that the OR failed to grapple with the issues and give adequate reasons.
Wildfish
and posted on the Council's website as part of the material submitted to it. It was a matter for the planning officer's judgment as to whether to refer to it expressly in the OR.
"Notwithstanding the above, Officers have taken the representations received on this matter into account, however, the comments made do not change the conclusions reached. It remains the situation that Anglian Water are obliged to accommodate the development which has planning permission and through a funded scheme (to be determined by Anglian Water) of improvements to the Buckingham WRC. There is a real prospect therefore that these upgrades will take place and that there is time for this matter to be resolved and to enable the development to be occupied, which is the trigger for the provision of the foul water scheme to serve the development as set out in condition 13 of permission 24/02780/VRC. Therefore, there is no planning reason why the determination of this reserved matters application cannot proceed on this basis."
Wildfish
submits that the Council acted in breach of section 100D LGA 1972 by not listing the Ofwat email as a "background paper" for the Committee meeting, and making a copy available for inspection.
Wildfish.
That did not confer upon it the status of a "background paper". It is clear from OR/5.131 that the planning officer's summary of the factual position was based on information supplied to the Council by Anglian, not by the email from Ofwat to
Wildfish.
Therefore I consider it fell outside the scope of the definition in subsection 100D(5) LGA 1972.
Wildfish
by any non-compliance.
Wildfish,
which was plainly aware of the document.
Wildfish
would not have been substantially different had the email been listed and published as a background paper.
Wildfish
claim does not succeed.
WILDFISH:
GROUND 4
Wildfish's
submissions
Wildfish
skeleton argument, paragraph 72).
Wildfish
did not accept), it could not stand in the light of the Ofwat email. This was a key material consideration that was not considered in the OR.
Conclusions
Wildfish
and posted on the Council's website. It was a matter for the planning officer's judgment as to whether or not to refer to it expressly.
"(v) Anglian Water stated on 5 November 2020 that its treatment centre did not have capacity to deal with the development, and that the development would lead to an unacceptable risk of flooding.
Again, this is only half the story. Anglian Water said it was obliged to deal with the foul flows from the development and would work with the developer to ensure any infrastructure improvements to address flooding risk."
"157. The upshot in my view is that a reasonable planning officer would not have thought these changes, such as they were, could change the outcome of the 2015 screening individually or cumulatively. In other words, a further screening would have produced the same conclusion as the 2015 screening that the development would not have significant effects on the environment."
"5.192 The EIA 2017 Regulations apply to full and outline planning applications and "subsequent applications" which includes applications for approval of a matter which is required by an extant planning permission, and which must be obtained before all or part of the development permitted by the planning permission may begin.
5.193 A screening opinion was undertaken in 2015 (ref 15/03562/SO) for a proposed development which was smaller in terms of size and number of dwellings proposed, compared with the outline scheme subsequently approved. A further screening opinion for the outline application was not considered to be necessary since the nature and extent of the changes between the schemes was not considered to be different to the extent that individually or cumulatively, they could change the outcome of the 2015 screening opinion. That continues to be the case with this reserved matters application. It is considered that there has been no significant change in circumstances since the previous outline approval ref 16/00151/AOP and that an Environment Impact Assessment remains unnecessary."
Wildfish's
Ground 4 does not succeed.
WOOD: GROUNDS 1 AND 2
Ms Wood's submissions
Ground 1
Ground 2
Conclusions
Ground 1
"19 In summary, whatever the legal character of the document in question, the starting point - and usually the end point - is to find the "natural and ordinary meaning" of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense."
"66 In Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85 and Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] 1 WLR 4317 this court has given guidance on the interpretation of planning conditions. In summary, there are no special rules for the interpretation of planning conditions. They are to be interpreted in a manner similar to the interpretation of other public documents. The court asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. This court has rejected assertions that there can never be a term implied into a condition in a planning permission, but it has recognised that a court must exercise great restraint in implying terms into public documents which have criminal sanctions: Trump International, paras 33—36; Lambeth London Borough Council, para 18. As a planning permission is a document created within the legal framework of planning law, the reasonable reader is to be treated as being equipped with some knowledge of planning law and practice: see the judgment of the Court of Appeal delivered by Lewison LJ in the Lambeth London Borough Council case [2019] PTSR 143, para 52, and the judgment of Lewison LJ in the present case, para 64."
"The latest government metric must be used by applicants as was available in the most recent survey season prior to application unless an alternative is agreed by the council prior to application submission. The calculation is derived by use of a Biodiversity Metric set by the government. This is a spreadsheet-based tool; and can be used in conjunction with a qualitative ecological assessment. The metric is used to calculate the units of biodiversity gained or lost as a result of development on a site, and that which can be gained on a potential off-set site."
"The Ecology Officers consider the response prepared by the applicant to provide a satisfactory justification for the use of 0.67 as the difficulty multiplier in the calculation of proposed hedgerow units. Principally, the multipliers in the Metric cannot be changed, these are protected cells that are pre-defined as set by Defra/Natural England. It is acknowledged that the Technical Supplement referred to by third parties indicates a difficulty multiplier of 0.1 (meaning high difficulty) for the creation of native species rich hedgerows. However, and pertinently, updated versions of the metric apply a difficulty multiplier for creation of native species rich hedgerows of 1.0 (low difficulty of creation). Therefore, it is agreed, in contrast to the concern raised by third parties, the use the Defra 2.0 metric that applies a multiplier of 0.67 provides a more precautionary assessment of the post-development value for hedgerows compared with proceeding versions of the metric."
"5.153 Concerns had been raised by third parties in the use of the multiplier. The Council's Ecology Officer considers the response prepared by the applicant to provide a satisfactory justification for the use of 0.67 as the difficulty multiplier in the calculation of proposed hedgerow units. Principally, the multipliers in the Metric cannot be changed, these are protected cells that are pre-defined as set by Defra/Natural England. It is acknowledged that the Technical Supplement referred to by third parties indicates a difficulty multiplier of 0.1 (meaning high difficulty) for the creation of native species rich hedgerows. However, and pertinently, updated versions of the metric apply a difficulty multiplier for creation of native species rich hedgerows of 1.0. Therefore, in contrast to the concern raised by third parties, the use the Defra 2.0 metric that applies a multiplier of 0.67 provides a more precautionary assessment of the post-development value for hedgerows compared with current versions of the metric. Officers have considered this matter and are satisfied with the approach.
……
5.155 The submitted updated metric (version N) states that the net gain for area habitats would be 3.04 units or 10.04%. This would be marginally in excess of that required in condition 22 of the outline permission. Clarity over the hedgerows has also been provided, in particular to confirm that the hedgerows within the site are largely to be retained. The details now show that based on the development coming forward there would be an increase of 1.25 hedgerow units resulting in an increase of 19.44%.
5.156 It is worth noting that the current application was submitted prior to the implementation of statutory biodiversity gain duty under the Environment Act 2021 that now requires development to deliver a minimum of 10% biodiversity gain (with exemptions). The current applications are assessed against policy and on the basis that Condition 22 requires the delivery of 10% BNG onsite. If the same development proposals (i.e. post development habitats) were to be assessed using the Statutory Biodiversity Metric using current baseline habitats (as they are onsite today), then the calculations would show a much greater increase in biodiversity than 10%. This is in part due to changes in the metric, but also due to the lower value nature of the baseline habitats. It is relevant to note that under the current applications, the proposed development stands to deliver a greater value for biodiversity than would be required by law if assessed using the Statutory Biodiversity Metric and up to date baseline conditions."
Ground 2
Final conclusion
Wildfish and Wood claims for judicial review are dismissed on all grounds.
Note 1 “S104” is a reference to section 104 of the Water Industry Act 1991, which makes provision for a legally binding agreement between a developer and a water company, under which the developer constructs new sewers and drains on site to a specific standard, allowing the water company to adopt and maintain them on completion [Back] Note 2 The time limits in section 91 TCPA 1990 have been amended since the decision inMurray. See the Note provided by Mr Streeten for the Council on 22 October 2025. [Back] Note 3 See Holgate LJ in Fiske v Test Valley Borough Council [2024] EWCA Civ 1541 at paragraph 56. [Back]