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

Then on 23 October 2024 the LPA granted outline planning permission for the development of the Heybeck Lane site, under the delegated powers conferred by the committee at the meeting in December 2022. This is the decision challenged in this claim, recorded in two documents that left certain matters to be resolved later. The first was entitled “Outline Planning Permission”; the second, “Delegated Decision to Determine Planning Applications”.

It is necessary to set out some extracts from these decision documents. The Outline Planning Permission was said to be subject to a section 106 agreement. The permission is for “residential development … of up to 181 dwellings, engineering and site works, demolition of existing property, landscaping, drainage and other associated infrastructure.” It was granted subject to 26 conditions, of which I need to mention a few.

Condition 1 states in part as follows:

“1.

Prior to the commencement of development (save for enabling works which for the purposes of this condition shall comprise site preparation, remediation works, provision of construction and temporary access roads, diversion and/or laying of strategic site-wide utilities, and works associated with archaeological surveys) of any phase or sub phase of the development hereby approved, details of appearance, landscaping, layout and scale (hereinafter called the “Reserved Matters”) of that phase or sub phase shall be submitted to and approved in writing by the Local Planning Authority … .”

There was a definition of “site preparation” which in turn is part of the definition of “enabling works” in condition 1:

“Site preparation comprises the installation of temporary facilities, installation of Heras or other fencing, installation of temporary construction compounds, and removal of existing structures and vegetation. Site preparation does not include ground works which are defined as excavation, remediation, grading and other activities related to the modification of the ground surface or subsurface.”

Thus, the developer could make a start by doing “enabling works” before obtaining approval for “Reserved Matters”, i.e. for “details of appearance, landscaping, layout and scale” of a phase or sub-phase of the development. It could remove existing structures and vegetation and instal temporary facilities, fencing and construction compounds. It could do “remediation works”, build access roads and divert utilities; though it could not do “ground works” involving “modification of the ground surface or subsurface”; unless, perhaps, these were “works associated with archaeological surveys”.

Condition 6 concerned plans for construction work. In part, it provides, with the explanatory “reason” following:

“6.

Prior to the commencement of development (including ground works) of any phase or sub phase of the development hereby approved, a Construction (Environmental) Management Plan (C(E)MP) for that phase or sub phase shall be submitted to and approved in writing by the Local Planning Authority. The C(E)MP shall include a timetable of all works, and details of:

•

Hours of works (including times of deliveries);

•

Point(s) of access and routes for construction traffic (which shall avoid Chidswell Lane);

•

Construction vehicle sizes;

•

…..

•

Measures to control and monitor the emission of dust and dirt during construction;

•

Site waste management, including details of recycling/disposing of waste resulting from construction works;

•

Mitigation of noise and vibration arising from all construction-related activities;

•

Artificial lighting used in connection with all construction-related activities and security of the construction site;

•

Site manager and resident liaison officer contacts, including details of their remit and responsibilities;

•

Engagement with local residents and occupants or their representatives; and

•

Engagement with the developers of nearby sites to agree any additional measures required in relation to cumulative impacts (should construction be carried out at nearby sites during the same period).

The development hereby approved shall be carried out strictly in accordance with the C(E)MP so approved throughout the period of construction and no change therefrom shall take place without the prior written consent of the Local Planning Authority.

Reason: In the interests of amenity, to ensure the highway is not obstructed, in the interests of highway safety, to ensure harm to biodiversity is avoided, and to accord with Policies LP21, LP24, LP30 and LP52 of the Kirklees Local Plan.

This pre-commencement condition is necessary to ensure measures to avoid obstruction to the wider highway network, to avoid increased risks to highway safety, and to prevent or minimise amenity and biodiversity impacts are devised and agreed at an appropriate stage of the development process.”

Conditions 9 and 10 required the developer before starting any enabling works to obtain the LPA’s approval of a “Tree Protection Plan” (condition 9) and an “Ancient Woodland Protection Plan” (condition 10). Conditions 24, 25 and 26, and the stated reasons for them, then provide as follows:

“24.

Each application for the approval of Reserved Matters shall include details of faunal enhancement measures (together with arrangements for their maintenance and management) informed by up-to-date and comprehensive ecological surveys (including surveys of protected species) prepared and submitted by the developer. Following approval in writing by the Local Planning Authority, the measures (which may include the provision of bird and boxes, and provisions relating to hedgehogs and badgers) shall be implemented on a phase-by-phase basis in accordance with the details so approved. No phase or sub phase of the development hereby approved shall be first occupied prior to the implementation of the faunal enhancement measures so approved for that phase or sub phase, unless the approved details include alternative proposals for the timing of installation of the measures (in which case those alternative proposals shall be complied with). The measures shall be maintained and managed in accordance with the approved details for a minimum period of 30 years thereafter.

Reason: To secure mitigation, enhancement and compensation for the ecological effects resulting from loss of habitat and to accord with policy LP30 of the Kirklees Local Plan and chapter 15 of the National Planning Policy Framework.

25.

No removal of hedgerows, trees or shrubs shall take place between 1st March and 31st August inclusive, unless authorised in writing by the Local Planning Authority in response to evidence to be submitted in writing to the Local Planning Authority demonstrating that no birds will be harmed and/or that there are appropriate measures in place to protect nesting bird interest on site.

Reason: To prevent significant ecological harm to birds, their eggs, nests and young and to accord with Policy LP30 of the Kirklees Local Plan and chapter 15 of the National Planning Policy Framework.

26.

Each application for the approval of Reserved Matters relating to residential use shall include floor plans (providing details of internal layouts of the residential accommodation) and a schedule of accommodation (providing unit size mix information and gross internal floorspace figures in sqm) for all residential units.

Reason: To enable the quality, amenities and housing mix of the residential accommodation to be assessed in accordance with policies LP11 and LP24 of the Kirklees Local Plan and chapter 5 of the National Planning Policy Framework.”

In the second document, the “Delegated Decision to Determine Planning Applications”, the LPA’s authorised officer recorded that she authorised approval of the application for the reasons set out in the report to the committee in December 2022 and “the Committee Decision Authorisation annexed below”, which was the December 2022 resolution.

There followed an explanatory section called “Officer Notes” which dealt in tabulated form with “Section 106 matters”. The issue numbered 13 was:

“Ecological mitigation and enhancement details (including an Ecological Design Strategy, measures to address impacts on birds including ground-nesting farmland birds), and details of mitigation and delivery measures to be submitted.”

That was said, in the right hand column (dealing with capture in the final list of conditions or in the section 106 agreement) to be secured by condition 24 and in Schedule 5 to the section 106 agreement, “including measures that would achieve what an Ecological Design Strategy would”.

The issue of biodiversity and the need for a “[c]ontribution (amount to be confirmed) or off-site measures to achieve biodiversity net gain (only applicable if 10% gain can’t be achieved on-site) was addressed in the right hand column thus: “Section 106 Schedule 5 (with net gain to be achieved not via a contribution”. The need to secure “other off-site measures (including buffers to ancient woodlands, and provision of skylark plots”, was addressed by “Section 106 Schedules 3 and 5”.