AC-2024-LDS-000251 - [2025] EWHC 2256 (Admin)

First, I do not accept that the conditions must, as a matter of “common sense”, be interpreted to mean that enabling works cannot be carried out until after the required updated ecological survey evidence has been obtained and approved. The wording of conditions 1 and 24 provides that adverse ecological impacts could occur before the relevant surveys were complete. The submission was that it would be an “improper ruse or device” (in Mr Carter’s words) to carry out ecologically damaging enabling works prematurely.

That submission is not in accordance with the wording of conditions 1 and 24 and the definition of site preparation. The developer carrying out enabling works would be able to point to the words of the conditions to rebut any suggestion that doing those works was premature and was an improper ruse or device. I agree with Ms Ridge, the deputy High Court judge who granted permission, that condition 1 “permits extensive site preparation works prior to submission of reserved matters approval” (paragraph 20 of her order).

I also agree with the deputy judge that the difficulty is not removed by the words of SPO (1), read with the section 106 agreement. I do not accept the submission of the developer that the site was adequately protected against adverse ecological impacts by the requirement that enabling works, including site preparation work, must not be done in advance of relevant surveys and LPA approval of appropriate measures, if such work involves “clearance of …. any … features of potential ecological importance” (SPO (1), clause 3.1).

That is not an answer to the deputy judge’s point that “the covenant does not promise that the [developer] will not commence the enabling works carved out in condition 1 prior to the submission of matters set out in clause 3” (paragraph 21 of her order). Enabling works preceding the start of the development could damage the ecology of the site by doing work that is alleged not to involve “features of potential ecological importance within the [s]ite”, not being hedgerows, trees and shrubs, the only examples recited of features that definitely qualify as having “potential ecological importance”.

However, I do agree with the LPA that SPO (2) adequately addresses the issue of timing. Condition 6 is, as the LPA submits, a requirement for an approved method statement, not a document stating required ecological outcomes. I reject the claimant’s proposition in argument that the required output from the ecological surveys does not fulfil the stated purpose of conditions 6 (the CEMP) and 24. That goes beyond the claimant’s pleaded third ground in SFG, paragraphs 72-82, for which permission has been granted. The attack there was on the timing and the pleading has not been amended to attack the rationality of the putative CEMP requirements.

For those reasons, I would not have upheld the third ground if it had stood alone. I would have decided, in respectful agreement with the deputy judge’s reasoning, that the decision to issue the planning permission was unlawful in October 2024 when it was made, but that the defect had been cured by the combined effect of SPO (1) and (2) bringing the developer’s obligations into line with the advice the committee was given by officers in December 2022.

I therefore would not have granted any substantive relief on the third ground, had it stood alone. The third ground was well-founded but is now academic. I come next to the fourth ground. I see some force in the claimant’s point that the “pre-development biodiversity value of the site” could be distorted by the carrying out of enabling works before the start of the development proper.

But the LPA says that cannot happen because it would not be lawful: it would conflict with the mandatory regime enacted in Schedule 7A to the 1990 Act which requires the baseline to be ascertained as at July 2020, when the application was made and the site remained pristine and untouched. There is force also in that point.

If the mandatory baseline is the baseline calculated using the relevant DEFRA metric as at July 2020, there is no difficulty arising from the claimant’s further point that the developer could carry out “ground works” – i.e. “excavation, remediation, grading and other activities related to the modification of the ground surface or subsurface” – before the updated Biodiversity Assessment which is required to confirm the 10 per cent BNG. The impact on the BNG of any such ground works would be measured from the July 2020 baseline.

The same reasoning applies to any other ecological damage that might be done to the site and which could affect the achievability of the 10 per cent BNG. Thus, the claimant says, ground cover on the site such as grassland and field margins that is not a feature of ecological importance could be cleared. But any damage thereby done would be factored into the measurement of the 10 per cent BNG, provided it is measured from the proper July 2020 baseline.

The updated Biodiversity Assessment might, as the claimant suggests, fail to support the achievability of a 10 per cent BNG. Or it could produce a requirement for substantial off-site interventions as well as on-site ones, to achieve the 10 per cent gain. But I share the concerns of the LPA and the developer that these latter points are not embraced within the claimant’s pleaded case on the fourth ground.

They would, in any case, be for officers and if necessary the committee to consider once the updated Biodiversity Assessment has been obtained. If the 10 per cent BNG, measured from the July 2020 baseline, were manifestly not achievable, or not without substantial off-site interventions, the LPA might well, at officer level, decline to bestow its approval of the Biodiversity Assessment, or it might decide to refer the BNG issue back to the committee.

None of these possibilities persuades me that the way in which the 10 per cent BNG issue was presented to members in December 2022 was misleading, provided that the proper BNG baseline was to be used. In my judgment, absent any contrary indication, the LPA should be treated as intending to comply with its legal obligation not to allow the BNG baseline to become artificially lowered by post-July 2020 enabling works or ground works.

I agree with the LPA and the developer that the wording of clause 3.3 of the covenant, as introduced by SPO (2), removes any residual doubt about this. The final clause 3.3 defines “pre-development biodiversity value”, i.e. the BNG baseline, as the earliest of (i) the start of “development” within section 56 of the 1990 Act, or (ii) the undertaking of any works including enabling works, or (iii) the start of clearance of hedgerows, trees, shrubs or other features of potential ecological importance.

That is, presumably, intended to allay any concern that the BNG baseline could be artificially lowered in the manner the claimant fears. I agree that the words of clause 3.3 introduced by SPO (2) are a sufficient safeguard against that occurring. It would have been simpler and clearer to define the baseline by reference to the statutory language in Schedule 7A to the 1990 Act, but the wording of clause 3.3 introduced by SPO (2) has the same effect.

There is therefore no basis, in my judgment, for granting any relief on the fourth ground of challenge. I also do not think there was any basis for doing so at the time the challenged decision was taken, in October 2024. I do not think the members were given any advice in December 2022 that conflicts with the decision as issued in October 2024. Even if they were, the difficulty is resolved by SPO (2) which clarifies that the BNG baseline will not be set at too low a level.

I would therefore not have granted any relief on the fourth ground, if it had stood alone. The third and fourth grounds are, viewed in isolation from the proposed fifth ground, both academic and do not need to be decided. I have had to go into their merits at the time of the decision to some extent, as a necessary pre-cursor to explaining why, ultimately, they are both academic. My decision is, strictly, that both the third and fourth grounds are academic and that there are no special reasons to decide them; and I do not do so.

However, there remains the application to advance the new fifth ground, to which I turn next and finally. I have to decide, first, whether to allow this ground to proceed; and second, if I allow it to proceed, whether the claim should succeed on that ground, not having succeeded on either of the two existing grounds taken on their own or with each other.

I accept the submission of the LPA and the developer, accepted also by the claimant, that the fifth ground of challenge is brought late, i.e. more than six weeks after the decision challenged. The six week period expired on 3 December 2024. The challenge had by then already been brought, on or about 25 November 2024. The point was not raised in pre-action correspondence.

In seeking to rely on the fifth ground, the claimant has followed the correct procedure by making a written application, explaining the basis of the challenge and including its explanation for the lateness. The written application was made in late April 2025. The application caused the LPA to disclose the email exchange in March 2024.

Mr Grayson had earlier in his email of 19 June 2023 contradicted the assertion of the claimant’s “understanding these draft documents [including the draft section 106 agreement] should already be published on the planning portal.” Not so, Mr Grayson responded: “No drafts of the agreements are in the public domain (nor are they required to be [my italics])”.

When the application to add the fifth ground was made, the LPA disclosed the March 2024 correspondence confirming that the decision letter and section 106 agreement “should appear online at the same time”. When Mr Grayson made his witness statement following the application, he did not give any explanation for his earlier assertion that the draft section 106 agreement was not required to be published.

The LPA pointed out that the claimant was advised by solicitors at the time. The LPA too has access to lawyers. The hearing date was fixed to take place nearly two months after the application was made, on 24 June 2025. The one day time estimate was maintained and the hearing completed within the day. The LPA and the developer opposed the application on the ground that it was made late without good cause and was in any case not arguable.

Mr Carter pointed to PD 54A, at paragraph 12.2, requiring a claimant seeking to add a new ground to do so promptly and to explain any delay in making the application. The claimants have done that. I would add that paragraph 12.4 of PD 54A then provides that “[f]or the purpose of determining an application to rely on additional grounds, rules 17.1 and 17.2 shall apply”.

Rule 17.1 is the ordinary rule applying to amendment applications in private law cases, stating at 17.1(2)(b) simply that a party may amend “with the permission of the court”. The criteria for allowing amendments are set out in numerous cases, many of them conveniently grouped in the notes to the White Book, vol. 1, 2025, at 17.3.8, including in particular cases where the amendment is made late, is prejudicial to the other party, could imperil a trial date, and so forth. The considerations are too well known to need repeating.

In private law proceedings, the court will not normally allow an amendment unless the point has a real chance of success. Similarly, in public law proceedings such as these, the court would not grant permission to amend if the point were not properly arguable, such that permission to advance it would be refused. The court must also take into account the lateness of the application to amend, including by reference to the unusually short limitation period in judicial review proceedings, even shorter in planning challenges.

In my judgment, the claimant should be permitted to rely on the fifth ground of challenge. I reject the submission of the LPA and developer that the point is unarguable. That is a difficult submission given the admission that the LPA failed to comply with its obligation to publish any draft section 106 agreement at any time prior to the issue of planning permission. It is clear that the court has discretion to allow the amendment out of time.

I am not persuaded that I should refuse leave to rely on the new fifth ground under section 31(3C) and (3D) of the SCA 1981. I will explain a little later why I do not consider it highly unlikely the outcome would not have been substantially different for the claimant had the conduct complained of (failing to publish the draft section 106 agreement before issuing the decision under challenge) not occurred.

In my judgment, this is a proper case for exercising the discretion in the claimant’s favour. First, the point is arguable as I have just said. Next, it is common ground that publication of a draft section 106 agreement at some point was mandatory and not done. I accept that the claimant could and should have challenged that failure earlier than it did; but I bear in mind that Ms Naylor is not a lawyer. Ms Byrd was not instructed until after the decision challenged, though solicitors were, at times, assisting the claimant.

Ms Naylor was conducting the correspondence herself. It did not come from solicitors. The claimant’s financial position is documented as being such as to justify limiting its costs exposure to the Aarhus Convention cap and, correspondingly, its likely costs recovery to £35,000. Mr Grayson too is not a lawyer and there is no indication that he consulted lawyers. He is, though, an experienced planning officer who should have known of the obligation to publish, if he did not; a point on which the LPA is silent.

In my judgment, in all the circumstances here the LPA ought to held potentially accountable for its admitted breach of article 40(3)(b) of the 2015 DMP Order. It is unattractive for a public body such as this one to avoid the consequences of an unexplained flagrant breach on purely procedural grounds, without asserting that it or the developer has suffered any prejudice arising from the lateness of the application to amend; and where the decision at issue affects such a major and controversial development.

It is inescapable that there was no prejudice to the LPA or developer. They were able to resist the application articulately. There were only two relevant short emails of additional evidence. The hearing date was unaffected. The time estimate was unaffected. They were able to address the fifth ground fully and intelligently in their skeleton and oral arguments. They did not suggest they were hampered in doing so by the lateness of the application.

Further, the application to amend was made promptly after the Court of Appeal’s decision in the Greenfields case. The first instance decision of HHJ Jarman KC had dealt with the issue in a cursory way because the judge did not, unlike the Court of Appeal, accept that the failure made any difference to the outcome. The earlier decision of Ouseley J in Midcounties Co-Operative v Wyre Forest DC [2009] EWHC 964 (Admin) did not examine the obligation to publish in the same depth as Lewis LJ did in Greenfields on appeal.

Lewis LJ’s approach was more expansive because he addressed the purpose of the provision and made general observations about the fact sensitive consequences of any breach of the obligation. The first instance judges had not done that. While it is true that the Court of Appeal did not say the law was being changed, its decision did develop the law and lend impetus to a factual analysis of the circumstances of a breach of the obligation.

Further, I bear in mind that the subject matter of ground 5 is closely related to the factual position arising from the third and fourth grounds. Though neither would independently have succeeded for reasons I have given above, the supervening SPO (1) and (2), particularly (2) lent focus to the absence of prior publication of the draft section 106 agreement which would have exposed to public scrutiny the very defects addressed in SPO (1) and (2).

So, while those two supplemental deeds and then the Court of Appeal’s decision may not have altered the law in any technical sense, the new fifth ground of challenge acquired sharper edges than it could have had if relied on at the time the claim was brought in November 2024. It is even possible that Ms Byrd is right when she suggests permission for the fifth ground would not have been given if it had been included at the time the claim was made; though I prefer not to speculate about that.

Standing back and looking at the matter in the round, I think it comes ill from the LPA and developer to complain of a moving target when they have themselves twice moved the claimant’s target. While the fifth ground of challenge could have been made from the outset, so could the section 106 agreement have included the provision in SPO (1) and (2) from the outset.

For completeness, if the issue were relief from sanctions, applying a Denton approach, I would reach the same conclusions. The default, i.e. the lateness of the fifth ground, is quite minor, the reasons for it have been explained and are respectable, the limitation period is unusually short and the other parties are not prejudiced. The points already made would also lead me to the conclusion that any relief from sanctions needed should be granted.

Turning to the merits of the fifth ground, it is not disputed that the breach of article 40(3)(b) occurred. It was significant because a major issue at the time of the committee’s resolution in December 2022 was the extent of the gaps in available information about biodiversity issues that would need to be addressed at reserved matters stage. They had not been adequately addressed, in my judgment, at the time the decision under challenge was made; hence the third ground of challenge would have succeeded, were it not for SPO (2).

Publication of the draft section 106 agreement would have enabled objectors, including the claimant, to comment intelligently and advocate restoring the matter to the committee for further consideration and public debate about the adequacy of the biodiversity safeguards and the achievability of the 10 per cent BNG. There is, I think, quite a strong likelihood that the issue would have gone back to the committee; cf. the reasoning in the Kides case, in the judgment of Jonathan Parker LJ at [125]-[126].

If opponents of the scheme had not been denied access to the draft section 106 agreement before the decision became effective, they could have commented on the shortcomings of that draft agreement, with their comments directed at the merits of the proposals. They would not have been constrained by the narrow legal basis for objecting in the course of judicial review proceedings, applying the strict judicial review standard, in court after the event.

A draft of the section 106 agreement should have been placed on the planning portal well before 23 October 2024, leaving sufficient time for intelligent comment from interested parties such as the claimant and other objectors. A request from Ms Naylor of the kind made in June 2023 and March 2024 should not have been necessary. The obligation to publish is not conditional on a prior request to do so. Ms Naylor was checking the portal each day.

I accept Ms Byrd’s submission that non-publication has caused real prejudice. I am not willing to withhold relief in respect of the failure to publish the draft section 106 agreement, in breach of the statutory obligation to do so. There was a serious want of transparency in the period leading to the decision challenged, while the developer and the LPA were negotiating with each other and shielding the product of their negotiations from the public.

I also bear in mind that those sceptical about the environmental aspects of the proposals included not just objectors but three of the seven committee members who voted against the resolution because they thought the committee lacked sufficient information about the gaps to be filled at reserved matters stage. It is likely that those three members, at least, would have wished to reconsider the proposals with the benefit of a draft section 106 agreement; especially one not including the provision later added by SPO (1) and (2).

By the same reasoning, I am far from persuaded that if the draft section 106 agreement had been published, it is highly likely (SCA 1981, section 31(2A)) the outcome for the claimant would not have been substantially different. The provision has been considered in many cases; see e.g. Hill J’s useful summary at [161]-[168] in R. (HPSPC Ltd) v. Secretary of State for Education [2022] EWHC 3159 (Admin), where earlier cases are reviewed. The “outcome” includes the practical consequences, i.e. what would have actually happened.

It is an open question what the outcome would have been. There is, at least, a strong possibility that if the conduct complained of (non-publication) had not occurred the outcome would have been substantially different. The section 106 obligations would probably have been improved, at least, in the way they now have been. The committee might well have asked for updated biodiversity work to be done before deciding whether to proceed.

For those reasons, the application for judicial review succeeds on the fifth ground. The LPA’s decision, in admitted breach of article 40(3)(b) of the 2015 DMP Order, not to publish the section 106 agreement until after the decision to grant planning permission, renders the planning permission invalid. I therefore propose, subject to any further observations, to quash the decision to grant planning permission and to award the claimant its costs against the LPA, limited to £35,000, and to make no other order as to costs.