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

The claimant objected to both planning applications concerning the MXS7 land, i.e. the Leeds Road and Heybeck Lane sites. Its 19 page document is not dated but was prepared in advance of the meeting on 8 December 2022. I need only mention a few points from it. It began by voicing strong objections to both applications, supported by several of the LPA’s elected members, two MPs, the Yorkshire Wildlife Trust, the Council for the Protection of Rural England, the Woodland Trust and the LPA’s ecology officers.

The claimant advocated deferring the applications, not for further public consultation but to obtain up to date Agricultural Land Classification (ALC) assessment, up to date ecological surveys and an up to date biodiversity net gain (BNG) assessment, which would be dependent on the provision of up to date ecological surveys. Essentially the claimant was saying the LPA did not have adequate and reliable environmental information and that it was wrong and perhaps unlawful to leave the gaps to be filled as “Reserved Matters”.

The document addressed ecological impacts. The claimant observed that the developer had engaged ecological consultants, called Brooks Ecological, to conduct surveys in 2018. This had noted an adverse effect on the “red listed” yellowhammer and skylark birds, which would be “negative at District scale”, “major” and “largely irreversible”. The developer’s wildlife surveys dated back to 2018; the wildlife profile had changed since then.

A design strategy document dating from 2021 based on observations in 2020 had failed, said the claimant, to mention yellowhammers and skylarks. The claimant had also pointed to other adverse impacts on wildlife, but its communications had been ignored or dismissed by Brooks Ecological, without justification. An outdated ornithological survey report had wrongly stated that there were no protected “Schedule 1” species on the site. The position of bats had also been misrepresented, the claimant contended.

The claimant argued that the further survey evidence would not be ready in time for the committee meeting on 8 December 2022. More attention needed to be given to protected species and that would not be possible in time for the meeting. That would lead to disregard of a mandatory relevant consideration, according to the claimant. The authors of the document then went on to consider the issue of biodiversity.

The claimant referred to objections to both developments from “Kirklees Ecology”, the LPA’s ecology officers, and the Yorkshire Wildlife Trust, going back to 2020, on the ground that there was insufficient up to date detail on protection of wildlife and achieving a “measurable net gain for biodiversity” (BNG), which must be “secured at the early stages of design” (paragraph 58). The Yorkshire Wildlife Trust had also identified “flaws in the 2020 Biodiversity Net Gain (BNG) metrics supplied by the [developer]” (59).

Brooks Ecological had, the claimant objected, assumed the headwater streams on the sites in October 2022, following a prolonged drought, as “in poor condition” and “choked with scrub vegetation and supporting invasive weeds” (60). Heavy rain followed and those same streams were now “flowing freely with crystal clear water throughout the site and into Hey Beck” (65).

The watercourses were therefore unjustly downgraded when measuring BNG. Further, the claimed BNG of plus 10 per cent had initially been said to be “achievable on-site”, which had proved to be false; subsequent calculations had incorporated off-site gains, with the on-site achievable gain now said to be only 3.53 per cent (68-69). The LPA itself recognised that local residents had “expressed disbelief that a [BNG] would be achieved by the proposed development”.

The decision should be deferred “given the bias and flaws with the Brooks Ecological reporting)” (71-72), the claimant contended. The conclusion in relation to BNG was (73):

“material considerations are being left to be dealt with as Reserved Matters. Without an accurate baseline survey, the [committee] will not be able to determine whether 10% BNG is actually achievable, because the BNG achievable onsite is uncertain – leaving a grant of Outline Planning permission vulnerable to a legal challenge.”

The claimant’s overall conclusions (84-87) included the complaint that the developer should not be allowed to “mark their own homework” with the LPA allowing them to do so unchallenged and supporting the developer’s unsound approach, ignoring or downplaying legitimate grounds of objection. The decision should be deferred so that “Material Considerations are given proper scrutiny and proper mitigation can be put in place”.

It was not enough that the site land was designated for mixed use development in the Local Plan. The claimant asked rhetorically (at 86): “[w]ithout accurate baseline information, how can the [committee] determine whether the proposal will avoid/mitigate significant loss or harm to biodiversity? Or what compensatory measures will be appropriate?” The section 106 agreement should be made before, not after, the grant of outline planning permission.