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

The two existing grounds (the third and fourth) and the proposed new fifth ground are interlinked. A high level summary of the claimant’s case overall is stated thus in its skeleton argument:

“the [committee], even if not actively or deliberately misled, were given material advice in the [officer’s report] and orally which transpired to be incomplete or inaccurate to a significant degree when the decision notice was issued and the section 106 agreement published. That error of law is compounded by the Defendant’s failure to publish the section 106 agreement in time for public comment, prior to issuing the decision (additional Ground 5).

… paragraph 10.69 of the [officer’s report] … states that the ‘council is able to make an informed decision’ (i.e. without deferral for updated ecological reports or BNG assessment) because ‘Further surveys would be required at Reserved Matters stage […] the applicant has proposed a policy-compliant biodiversity net gain […] Conditions and provisions (secured via a Section 106 agreement) can be applied to mitigate the ecological impacts of the proposed development’. …That statement should be read as advice to members that conditions will be applied, and an agreement will be finalised, which mitigates ecological impacts as far as possible and achieves at least 10% biodiversity net gain. For the reasons set out in the Grounds 3 and 4, this did not happen.

…. The consequences of the [committee]’s reliance on officer advice is that outline planning permission was issued without the effective ecological conditions and ‘’policy compliant’ biodiversity net gain provision which the SPC took into account as material when resolving to grant it. Due to the timing of publication of the section 106 agreement, and the supplemental deeds, the SPC were deprived of expert comment on the agreement’s implications for the ecological protection of the site.”

In the third ground, the claimant says the committee was told the appropriate time for further ecological surveys was at reserved matters stage; but was not told that significant works would be “carved out” of reserved matters with significant preceding works, a material consideration the committee could not take into account. The exclusion in condition 1 of “enabling works” from the definition of reserved matters permitted ecologically damaging works before any further ecological survey evidence would be obtained.

The deputy judge had rightly agreed and had noted that SPO (1) does not cure the defect because the developer could still “commence the enabling works … prior to the submission of reserved matters set out in clause 3”. The claimant accepts that SPO (1) and (2) together do prohibit “enabling works” until up to date ecological surveys, details of protection for habitats to be retained during construction works, and the Biodiversity Assessment, have been carried out; but says this does not meet the point that “the required output from the surveys does not fulfil the stated purpose of Conditions 6 (CEMP) and 24.”

Conditions 6 and 24, the claimant submits, do not mitigate the ecological harm from the development as far as possible. Those conditions do not require avoidance or mitigation measures to be informed by the updated ecological surveys now required by SPO (1) and (2) to be done before enabling works are started. This issue, says the claimant, is properly pleaded in the grounds (paragraphs 72-82, predating the permission decision) and is within the scope of the unrestricted permission to advance the third ground.

Further, says the claimant, no measures are required to protect habitats outside the site, such as the adjacent ancient woodland at Dum Wood; nor are any measures required to protect species despite their acknowledged presence on the site. Any ecological surveys will therefore be largely “performative”, the claimant says; they will not feed into avoidance, mitigation or compensation measures, besides “faunal enhancement measures”.

That means the requirements of conditions 6 and 24 will fall short of the advice to members that ecological impacts would be mitigated by condition, as required under Policy LP30 and paragraph 186(a) of the NPPF. If the full proposed conditions and draft section 106 agreement had been available to the public and the committee before its resolution, it is unlikely, the claimant submits, that the committee would have resolved to grant permission.

For the LPA, Mr Martin Carter submitted that the claimant’s points went beyond its pleaded case and beyond what the deputy judge had permitted to proceed. For example, the advanced age of the survey evidence before the committee was the territory of the second ground for which permission had been refused. Further, the grant of permission on the third and fourth grounds should be viewed as restricted to the points raised under those grounds.

The LPA accepted that condition 1 allows enabling works, as defined, to be done before reserved matters are determined; and that the definition of enabling works included “site preparation”, as defined; and that condition 24 does not, on its face, state when the relevant surveys must be carried out and approved. But, Mr Carter submitted, it would be “contrary to common sense” to interpret it so that the surveys could take place too late, after ecological damage had been done.

Conditions 1 and 24 read together meant that adverse ecological impacts could not occur before the relevant surveys were complete. It would be an “improper ruse or device if their effect was to adversely affect ecological interests”, Mr Carter submitted. Alternatively, any defect was cured by SPO (1) or, in the further alternative, by SPO (1) and (2), read together so that enabling works could not start until up to date and comprehensive ecological surveys had been done and approved in compliance with condition 24.

As for condition 6 (providing for the Construction (Environmental) Management Plan (CEMP), said Mr Carter, it adds nothing to the claimant’s case. If, which the LPA does not accept, reliance on it is permissible under the permission granted for the third ground, condition 6 does fulfil its stated purpose. Condition 6 does not seek to identify ecological mitigation or compensation measures. It requires specified topics to be addressed in the CEMP to avoid ecological harm among other kinds of harm.

Condition 6 concerning the CEMP thus specifies methods to be used, not outcomes to be achieved. Further, condition 6 does not include any “carve out” for “enabling works”; the CEMP must be approved prior to the commencement of development. If the CEMP were approved after provision of the relevant up to date ecological survey evidence, no issue under condition 6 could arise. If those up to date surveys had not yet been provided, the LPA could refuse to approve the developer’s CEMP until they were provided.

For the developer, Mr Alexander Booth KC submitted that the third ground lacked merit but was in any case academic as it was superseded by SPO (1) and SPO (2) and any defect (none being accepted) is now cured, if not by SPO (1), then by SPO (1) and (2) read together. The developer’s submissions largely chimed with those of the LPA and need not all be repeated.

Further, disagreeing respectfully with the deputy judge’s analysis, Mr Booth submitted that the section 106 agreement as supplemented by SPO (1), i.e. as it stood at permission stage, required the developer not to carry out enabling works, including site preparation work, 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 sufficient to allay any concerns that enabling works could be carried out prematurely. Even if that was wrong, or to avoid any forensic doubt on the point, SPO (2) has put the issue beyond doubt, rendering the third ground of challenge wholly academic, Mr Booth submitted. There are no exceptional circumstances that would impel the court to determine the academic question.

While the claimant says that “features of potential ecological importance” is not a sufficiently clear criterion for protecting plants and weeds supporting insect and bird life, that is not pleaded and is not open to the claimant; and, even if it were, the high threshold of irrationality would have to be reached to impugn the use of that criterion and cannot arguably be surmounted. The current agricultural use of the site already permits alternations that could affect insect and bird life; the site cannot be “ecologically frozen”.

As I have noted above, the claimant’s two grounds and one potential ground are interlinked. In my judgment they are best considered and assessed together and I will therefore return to this ground when assessing the parties’ submissions overall. I turn to the fourth ground of challenge next.