Council defeats High Court claim that it should have returned decision to planning committee

Buckinghamshire Council has defeated a High Court attempt to overturn a planning decision to allow up to 170 new homes adjacent to the village of Maids Moreton.

In Hardcastle, R (On the Application Of) v BDW Trading Ltd (t/a David Wilson Homes South Midlands) [2022] EWHC 2905 (Admin) Sir Ross Cranston, siting as a High Court judge, rejected all grounds argued by parish councillor Patrick Hardcastle.

Buckinghamshire had granted outline planning permission for the development based on a local plan adopted by the former Aylesbury Vale District Council.

The application came to the planning committee in November 2020 with an officer's report which recommended acceptance subject to completion of the section 106 agreement and securing of a district licence for protected species.

A motion to refuse was lost by the chair's casting vote and permission was deferred and delegated for approval by officers, once the conditions were resolved.

Aylesbury Vale then took advice from David Elvin KC over what it considered were serious allegations made against council officers and that its handling of the planning application had been unlawful. He though concluded there was no error by the officers and the matter was appropriately dealt with by the committee.

Mr Hardcastle argued that the council's failure to take the planning application back to the committee was a breach of its statutory duty in s.70(2) of the Town and Country Planning Act 1990 and was an unlawful by failing to look again at material considerations.

Sir Ross said: “As ever it is necessary with this officer's report to eschew an unduly legalistic or unduly critical approach but rather to engage in a reasonably benevolent and fair reading, taking it as a whole.

“In my view, on a fair, objective assessment of the 2022 report…the officer adopted an approach applying the Kides principle.”

The judge also rejected Mr Hardcastle’s contention that a 2022 officer's report did not consider the extent of the reduction in development by then proposed and whether the new homes would fall below the ‘at least 170’ provided for in the earlier decisions.

Sir Ross said: “In my view none of this goes anywhere…the issue is whether the inquiry made by a planning authority is so inadequate that no reasonable planning authority could suppose it had sufficient material available to grant planning permission.

“That cannot be said in this case, where after the revision of the biodiversity net gain in 2022 the council's ecologist was satisfied that the 10% BNG could still be achieved, but the exact layout and location of habitat and biodiversity sites would be subject to the detailed planning stage.

“It is not clear to me what relevant considerations the council did not take into account, but if it is the number of houses that has been addressed already, especially in the context of an outline planning application.”

Sir Ross also rejected the ground that there was a breach of a legitimate expectation that the developer's planning application would be returned to the committee for reconsideration.

He said: “In my view not remitting the matter to the committee was a proportionate response to a legitimate aim pursued in the public interest”, since no material considerations had arisen in the 18 months since its original decision.

Officers did not exceed their delegated authority and the council conducted environmental impact assessment correctly, he further concluded.

Mr Hardcastle also argued that the officer’s report misinterpreted the National Planning Policy Framework on the quality of agricultural land.

Sir Ross said councillors “were not told the full story about the guidance proffered in the NPPF” on loss of farm land but the inaccuracy was not as to a relevant fact (or facts), or as to a statutory requirement”.

He added: “The reality also was that the conclusion in the 2019 consultant's report assessing the land was that the loss of the site to agriculture did not represent a significant loss locally or regionally…and was almost inevitable with any development in the area.

“In my view the report cannot be said to have contained material errors, failed to guide the members sufficiently, or significantly mislead them on a matter material to their decision.”

Mark Smulian