Patrick Hardcastle, R (on the application of) v Buckinghamshire Council

In applying the Kides principle, a planning authority need not refer an application back to committee whenever a new matter arises after a resolution to grant permission. The question is whether, at the date of decision, the authority has considered all material considerations with the application in mind. A new matter is material if a rational decision-maker would regard it as so obviously material that it must be taken into account, including because it was realistically capable of producing a different outcome.

In an outline application, changes to the indicative layout or biodiversity calculations will not necessarily be material where reserved matters remain to be determined. Screening for EIA requires careful consideration based on sufficient and accurate information, but remains a limited and provisional exercise. Officers’ reports are read fairly and as a whole.

The claimant, a resident and parish councillor, challenged Buckinghamshire Council’s grant of outline planning permission to BDW Trading Ltd for up to 170 dwellings and associated infrastructure at Maids Moreton.

The challenge concerned the council’s decision to grant permission under delegated powers after a committee had resolved in 2020 to defer and delegate approval, subject to specified matters. The claimant alleged failures to return the application to committee, unlawful consideration of revised biodiversity proposals, breach of legitimate expectation, excess of delegated authority, errors in the 2015 EIA screening opinion and misdirection concerning best and most versatile agricultural land.

1. Ground 1. The claim was dismissed. Under section 70(2) of the Town and Country Planning Act 1990, the authority had to have regard to material considerations, but R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370 did not require every new matter to be referred back to members. The delegated officer had to ensure that members were aware of any new material consideration, that it was considered with the application in mind, and that reconsideration would lead to the same decision. A material consideration was one which a rational decision-maker would regard as so obviously material that it must be taken into account. None of the revised biodiversity figures, indicative reduction in dwellings, traffic evidence, adoption of the VALP, or their cumulative effect met that threshold.
2. The officer had fairly applied the Kides approach. The adopted VALP did not materially alter the policy position considered by the committee and reinforced its conclusion. The officers’ review of changed circumstances was within the delegation.
3. Ground 2. The Tameside duty required an inquiry so inadequate that no reasonable planning authority could regard the material available as sufficient. That threshold was not met. The revised biodiversity evidence and conditions provided a rational basis for concluding that the required net gain could be achieved at the reserved-matters stage.
4. Ground 3. The council’s February 2021 statement that the application would be taken back to committee created a clear and unambiguous legitimate expectation. However, the expectation could be frustrated where objectively justified and proportionate in the public interest. The site allocation was adopted without the anticipated adverse change, no material consideration had arisen, and objectors had ample opportunities to make representations.
5. Ground 4. On an objective and realistic reading of the committee’s resolution, the officers were entitled to consider whether changed circumstances required remission. Their consideration of that issue did not amount to an impermissible reassessment of the planning merits.
6. Ground 5. The 2015 screening opinion was lawful. Its references to substantial or substantive effects did not displace the correct significant-effects test. The opinion considered the Schedule 3 criteria, gave adequate concise reasons, and did not need to assess every planning issue in detail. A further screening was unnecessary because no reasonable officer could have regarded the later changes, individually or cumulatively, as capable of producing a different EIA outcome.
7. Ground 6. Although the officer’s report did not give members the full NPPF position on best and most versatile agricultural land, it did identify the relevant economic and other benefits. The omission did not materially mislead members or affect the decision.

The claim was dismissed. The court did not need to determine the alternative case under section 31(2A) of the Senior Courts Act 1981.