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

The relevant law set out in the parties’ skeleton arguments is not controversial. By section 70(2) of the Town and Country Planning Act 1990 (the 1990 Act) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act) a decision on planning permission of this kind must be made having regard to the Local Plan and other mandatory material considerations including the National Planning Policy Framework (NPPF); which, at the relevant time and now, included paragraph 186 (now 193):

“a)

if significant harm to biodiversity resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused; …”

Policy LP30 of the Local Plan headed “Biodiversity and geodiversity” includes provision that development proposals will be required to:

“(i)

result in no significant harm or loss to biodiversity in Kirklees through avoidance, adequate mitigation or, as a last resort, compensatory measures secured through the establishment of a legally binding agreement;

(ii)

minimise impact on biodiversity and provide net biodiversity gains through good design by incorporating biodiversity enhancements and habitat creation where opportunities exist;

(iii)

safeguard and enhance the function and connectivity of the Kirklees Wildlife Habitat Network at a local and wider landscape-scale unless the loss of the site and its functional role within the network can be fully maintained or compensated for in the long term;

(iv)

establish additional ecological links to the Kirklees Wildlife Habitat Network where opportunities exist; and

(iv)

incorporate biodiversity enhancement measures to reflect the priority habitats and species identified for the relevant Kirklees Biodiversity Opportunity Zone.”

The “Policy justification” supplementing that text, not forming part of Policy LP30 but relevant to its interpretation, includes at paragraph 13.19:

“All development in Kirklees, as set out in national policy and the policies described in this document, will be expected to not result in significant loss or harm to biodiversity through avoidance, mitigation and compensatory measures and seek opportunities to enhance biodiversity value and ecological links. … In order to safeguard and enhance the function and connectivity of the Kirklees Wildlife Habitat Network, the council will also seek to ensure that development proposals do not result in the fragmentation of the network and provide improved ecological links, particularly to the Kirklees Wildlife Habitat Network, where opportunities exist.”

Section 72(1) of the 1990 Act provides for conditions to be imposed on a planning permission:

“(a)

for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission; … .”

Clear and precise reasons for each condition imposed must be given in the decision notice where permission is given for planning permission or approval of reserved matters: article 35(1)(a) of the 2015 DMP Order.

The Planning Court must not indulge in excessive legalism. Reports are written for councillors with local knowledge and must be read without undue rigour. The question is whether officers materially misled members on a relevant matter that is more than minor or insignificant and the error has gone uncorrected before the decision is made. Lack of advice on a material issue may be an error of law: R. (Mansell) v. Tonbridge and Malling Borough Council [2019] PTSR 1452 per Lindblom LJ at [41], [42(2)] and [42(3)].

Decisions on planning permission should not be subjected to “hypercritical scrutiny” or “laboriously dissected in an effort to find fault”: per Lindblom LJ in St Modwen Developments Ltd v. Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 at [7]. The requirement to treat advice with benevolence applies with even greater force to such advice given orally at a committee meeting: Lisle-Mainwaring v. Royal Borough of Kensington and Chelsea [2024] EWHC 440 (Admin) per Neil Cameron KC (sitting as a deputy High Court judge) at [27].

When assessing an officer’s report, the court should “focus on the substance” of the report to see if it has sufficiently drawn councillors’ attention to relevant matters “rather than to insist upon an elaborate citation of underlying background materials”: Maxwell v. Wiltshire DC [2011] EWHC 1840 (Admin) at [43] per Sales J, as he then was.

As for interpretation of planning conditions, Lord Hodge DPSC observed in DB Symmetry Ltd v. Swindon BC [2023] 1 WLR 198, SC, at [66]:

“…. [t]here 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. … . 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 … .”

While people may reasonably differ about what amounts to common sense, references to common sense such as those of Lord Hodge DPSC in DB Symmetry Ltd “are really pointing to the planning purpose of the permission or condition” per Lieven J in UBB Waste Essex Ltd v. Essex County Council [2019] EWHC 1924 (Admin), at [53].

A planning obligation can put right a defect in conditions originally imposed; see the obiter observations of Lindblom J, as he then was, in R. (TWS) v. Manchester City Council [2013] EWHC 55 (Admin) at [86]; and of HHJ Jarman KC in R. (Whiteside) v. Croydon LBC [2022] EWHC 3318 (Admin) at [24]-[26].

The courts will not determine academic or hypothetical disputes, absent exceptional circumstances (R. v. Secretary of State for the Home Department ex p. Salem [1999] 1 AC 450, HL, per Lord Slynn at 457A-B, and R. (Zoolife International Ltd) v. Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 per Silber J at [36]).