David Sahota, R (on the application of) v Herefordshire Council

Post-decision evidence may be admitted in judicial review where it elucidates, rather than fundamentally alters or contradicts, the contemporaneous reasons. An appellate court should interfere with that discretionary decision only for an error of principle or a conclusion that was not reasonably open.

Under the Conservation of Habitats and Species Regulations 2017, the competent authority decides whether a project may significantly affect a protected site, subject to supervisory public-law review. A planning report is read fairly and benevolently. It is unlawful only where a material error misleads the decision-maker and remains uncorrected. No separate EIA-style screening procedure is required. The appeal was dismissed.

Herefordshire Council granted planning permission for a cattle shed and an extension to an agricultural building. The site was near the River Wye Special Area of Conservation and Site of Special Scientific Interest. The claimant challenged the permission by judicial review, arguing that increased manure production could affect the River Wye.

HHJ Worster dismissed the claim in the High Court on 25 August 2021. The appeal concerned whether the judge wrongly admitted a post-decision witness statement from the council’s ecology officer and whether the planning committee had been misled into believing that a Habitats Regulations Assessment was unnecessary.

The appeal was dismissed.

1. Admission of evidence. The court applied the principles governing ex post facto evidence in judicial review. The court has a discretion to admit later evidence where it elucidates the contemporaneous reasons, but evidence that fundamentally alters or contradicts those reasons will generally be excluded. Appellate intervention is limited to an error of principle or a conclusion that was not reasonably open to the judge.
2. The ecology officer’s statement explained material that had been in his mind when he advised the council. It did not introduce a rolling review or contradict the officers’ report. Where a committee follows its officers’ recommendation, the reasonable inference is that it adopted the officers’ reasons unless there is an indication to the contrary. Reports must be sufficiently clear and full, but courts should not impose an excessively demanding standard on reports prepared for elected councillors with local knowledge.
3. Habitats assessment. The duty under regulation 63 of the Conservation of Habitats and Species Regulations 2017 rests with the competent authority. Whether a project may affect the integrity of a protected site is an evaluative judgment for that authority. Judicial review is supervisory and intervention requires a Wednesbury error. A report is assessed by a fair reading as a whole, with reasonable benevolence. The relevant question is whether the committee was materially misled on a matter bearing on its decision and the error remained uncorrected.
4. The Habitats legislation does not require an EIA-style formal screening procedure. An authority may make an informal threshold decision. If it identifies a risk of significant adverse effects, an appropriate assessment is required. The authority may give significant weight to expert nature-conservation advice and must have cogent reasons if it departs from it.
5. The ecology officer relied on Natural England’s methodology and concluded that the proposal had no relevant effect on the River Wye SAC. The court accepted that conclusion as reasonably open, whether the proposal was considered alone or in combination with other plans or projects. Showing that another expert might reach a different conclusion was insufficient. No demonstrable error in reasoning or irrationality was established.

• Court of Appeal (Civil Division) dismissed the appeal unanimously: [2022] EWCA Civ 1640.
• High Court of Justice, King’s Bench Division, Planning Court, HHJ Worster, dismissed the judicial review claim challenging the grant of planning permission on 25 August 2021.