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

The LPA in its 2019 Local Plan allocated the whole 120 hectares of the “MXS7” land for residential development. The Strategic Planning Committee of the LPA (the committee) met on 8 December 2022 to consider applications made in July 2020 in respect of the two linked sites, the smaller Heybeck Lane site (the subject of this claim) and the larger Leeds Road site. The officer’s report relating to the Heybeck Lane site included references to the corresponding report relating to the Leeds Road site.

The proposals were controversial and divided local opinion. Needless to say, the court takes no view regarding the merits of the proposals. The applicant for outline planning permission was the developer. The agenda item was, as stated at the start of the officer’s report:

“Planning Application 2020/92350 Outline application for residential development (Use Class C3) of up to 181 dwellings, engineering and site works, demolition of existing property, landscaping, drainage and other associated infrastructure (amended and further information received) Land south of, Heybeck Lane, Chidswell, Shaw Cross, Dewsbury.”

The officer’s report recommended that approval be delegated to the LPA’s head of planning and development to complete “the list of conditions including those contained within this report and to secure a Section 106 agreement” within three months. All matters apart from access to the site were “Reserved Matters”. The section 106 agreement was to cover a list of 12 matters, including, seventh on the list:

“Biodiversity

a)

Contribution (amount to be confirmed) or off-site measures to achieve biodiversity net gain (only applicable if 10% can’t be achieved on-site

b)

Securing other off-site measures (including buffers to ancient woodlands, and provision of skylark plots).”

The officer’s report pointed out the following. Most of the application site was greenfield land in arable agricultural use. Only one significant building is on the site (paragraph 2.3). The overall MX7 site was allocated for mixed use (housing and employment) in the Local Plan (2.8). The many representations in opposition to the development, from the claimant among others, were summarised (7.1 to 7.8). Among the many grounds for objecting was (at 7.6):

“Claimed biodiversity net gain not accepted. Earlier independent assessment identified a 14% net loss.”

The position of various statutory and non-statutory consultees was summarised in section 8. At 8.23, the author explained that “KC Trees”, an entity within the LPA, supported the “[g]eneral principle” of the proposal but identified one hedgerow on the site as “important”. The impact on it would need “mitigating”, possibly by “translocation”, i.e. moving it elsewhere. More detail would be required at “Reserved Matters” stage.

The proposed development, on its own, was not “EIA development”, i.e. it was not a development requiring a prior environmental impact assessment; but the impacts were taken into account in the EIA for the much larger Leeds Road site. Section 10 of the report was an assessment of the “[m]ain [i]ssues”. They were many, among them “[e]cological considerations” (10.64-10.69):

“Ecological considerations

10.64

Chapter 15 of the NPPF and Local Plan policy LP30 apply. Of particular note, paragraph 174 of the NPPF requires the proposed development to achieve a biodiversity net gain.

10.65

Much of the commentary set out in the accompanying committee report for application ref: 2020/92331 is also relevant to the Heybeck Lane site. The same ecological surveys appended to chapter 14 of the ES submitted with application ref: 2020/92331 have also been submitted in support of the Heybeck Lane application. Similarly, a letter regarding bat surveys of lofts (dated 23/08/2022) was submitted. Of specific relevance to the Heybeck Lane site, that letter noted that the loft of 39 Heybeck Lane has previously been converted and there is therefore no accessible loft space to inspect for bat presence. A High-Level Biodiversity Net Gain Assessment (01/11/2022), including findings of a walkover survey undertaken in October 2022, was also submitted.

10.66

At the Heybeck Lane site, the applicant’s biodiversity net gain calculation (using the Biodiversity Metric 3.1) confirms the proposed development would achieve the following net gains (post-intervention):

• Habitat units: 10.03%

• Hedgerow units: 10.61%

10.67

Of note, no net gain in river units is proposed, as the existing river unit baseline was found to be zero. It is also noted that the proposed 10.03% net gain in habitat units is partly reliant upon off-site interventions.

10.68

The proposed net gains are considered achievable. Delivery of the proposed off-site interventions would need to be secured via the recommended Section 106 agreement.

10.69

As with application ref: 2020/92331, the council is able to make an informed decision on the current outline application. Further surveys would be required at Reserved Matters stage (if outline permission is granted). The applicant has proposed a policy-compliant biodiversity net gain, and has met other requirements of relevant planning policies. Conditions and provisions (secured via a Section 106 agreement) can be applied to mitigate the ecological impacts of the proposed development.”

The next part of the section concerned “[t]rees, ancient woodlands and hedgerows (10.70-10.75):

“10.70

Several Tree Preservation Orders protect trees and groups of trees within and adjacent to the application site, and an ancient woodland (Dum Wood) is designated to the east of the site. Local Plan policy LP33 states that planning permission will not be granted for developments which directly or indirectly threaten trees or woodlands of significant amenity, and proposals should normally retain any valuable or important trees where they make a contribution to public amenity or have other benefits.

10.71

The applicant’s Hedgerow Assessment and Report (July 2018) at appendix 14.9 of the ES submitted with application ref: 2020/92331 states that three of the MXS7 site’s hedgerows can be defined as “important” under the Hedgerow Regulations 1997, and that a further five hedgerows just fall short of being classified as “important”, due to there being either one too few woody species or associated features, or by not being adjacent to a public right of way. One of the “important” hedgerows is within the Heybeck Lane site.

10.72

The proposed development (as illustrated indicatively) largely retains existing trees and hedgerows, and an appropriate buffer is proposed adjacent to the ancient woodland. The applicant’s landscaping proposals are currently indicative, however they illustrate potential biodiversity connections across the site.

10.73

The applicant’s illustrative layout and supporting arboricultural impact assessment demonstrates that the site can be developed while incorporating the existing important trees, woodlands and hedgerows into the, and avoiding adverse impact on these features. Significantly more detail would, of course, be required at Reserved Matters stage, including details of how the site’s hedgerows would be retained.

10.74

Further assessment regarding impacts on Dum Wood is set out in the accompanying committee report for application ref: 2020/92331.

10.75

As noted by KC Trees, the hedgerow identified as “important” appears to be impacted by the proposals. This would need to be considered further at Reserved Matters stage when, if the hedgerow is not to be retained and worked around, mitigation would be required, possibly in the form of translocation of the hedgerow to a new site more associated with the adjacent ancient woodland.”

At 10.82, under the sub-heading “[p]lanning obligations and financial viability”, the report continued (so far as I need quote it here):

“A development of this scale would have significant impacts requiring mitigation. The following planning obligations securing mitigation (and the benefits of the proposed development, where relevant to the balance of planning considerations) would need to be included in a Section 106 agreement:

….

7)

Biodiversity

a)

Contribution (amount to be confirmed) or off-site measures to achieve biodiversity net gain (only applicable if 10% can’t be achieved on-site);

b)

Securing other off-site measures (including buffers to ancient woodlands, and provision of skylark plots).

….

10)

Ancient woodland – management plan (and works, if required) for public access to Dum Wood (outside application site, but within applicant’s ownership).”

Under the sub-heading “[r]epresentations, reference to the claimant’s position was made, as follows (10.89):

“The request made by the Chidswell Action Group to delay determination of the application is noted, but is not supported. As part of the recent reconsultation, letters and emails were sent to everyone who had previously been consulted and everyone who had previously commented on the application, and four new site notices were posted on 02/11/2022. This greatly exceeds the consultation effort required by the relevant legislation, and would have ensured a good level of local awareness regarding the application and the reconsultation.”

The report recommended 26 conditions for the outline planning permission, at 11.1, among them conditions 13 and 24:

“13)

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.

…

24)

Construction (Environmental) Management Plan to be submitted.”