Westerleigh Group Ltd, R (on the application of) v Aylesbury Vale District Council

After a planning committee has resolved to grant permission, a later matter requires reconsideration only if it is a material planning consideration and the delegated officer cannot safely conclude that the authority, aware of it and considering it with the application, would reach the same decision. A proposed alternative site is not automatically material. Its relevance depends on the project, the planning objections, the public need and any principle requiring comparison. In European protected species cases, the planning authority need not conduct Natural England’s licensing assessment. It must, however, have regard to the Habitats Directive and must not disregard material evidence that an alternative site would meet the need without requiring a derogation, particularly where licensing of the application site appears unlikely.

The claimant sought judicial review of planning permission granted for a crematorium on agricultural land at Bierton. It argued that the council had unlawfully failed to reconsider the application after archaeological advice, failed to tell the committee that the claimant had a competing crematorium application at Watermead, and misdirected itself on the protected-species licensing tests for great crested newts.

The council accepted that the area was likely to require only one crematorium. The Watermead proposal did not involve known European protected species. The central issues were whether the archaeological advice and the competing application were material considerations, and whether the council had properly discharged its duty concerning the Habitats Directive.

Claim allowed in part; permission quashed.

1. Archaeology. The archaeological response could not reasonably have been anticipated before the committee’s resolution. It might initially have been material because investigation was requested before determination. However, the County Archaeological Service subsequently accepted that its concern could be dealt with by a Grampian-style condition. That meant the response no longer tipped the balance or required referral back to committee. The wording of condition 14 differed from the draft condition, but achieved the same practical result. Ground one therefore failed.
2. Alternative site in general planning terms. The Watermead application was not a mandatory material consideration. The adverse effects identified at Bierton were moderate landscape harm and the loss of about two hectares of best and most versatile agricultural land, substantially below the consultation threshold. They were not the strong planning objections contemplated in Trust House Forte Ltd v Secretary of State. No statutory or policy rule compelled consideration of the alternative site. Ground two(a) failed.
3. Protected species. Regulations 9(3), 40, 41(1)(d) and 53 of the Conservation of Habitats and Species Regulations 2010 required the council to have regard to the Directive, but Natural England was the licensing body. Under R (Morge) v Hampshire County Council, R (Christopher Prideaux) v Buckinghamshire County Council and Cheshire East Council v Secretary of State for Communities and Local Government, the council need not undertake a detailed independent licensing assessment.
4. The council nevertheless had before it evidence of the Watermead application, the single-crematorium need and the absence of protected species there. That evidence was material to whether Bierton had a satisfactory alternative under the licensing tests. The advice that there were no more satisfactory alternatives significantly misled the committee, and the error was not shown to be immaterial. Ground two(b) succeeded.
5. The permission was quashed. The court invited submissions on the final order and costs.

First-instance judicial review proceedings. The judgment does not state any prior appellate decision in this litigation.