Wildfish, R (on the application of) v Buckinghamshire Council

In judicial review of planning decisions, the court reviews legality rather than planning merits. A drainage scheme required by a planning condition is not a reserved matter merely because the condition refers to reserved matters. A section 73 permission creates a new permission alongside the original permission and does not extend the time for applying for reserved matters.

Amendments to a reserved-matters application made after the relevant time limit are permissible unless they alter the whole character of the application so as substantially to amount to a new application. Further consultation is required only where fairness demands it, particularly where the change is fundamental and highly significant. A planning authority may rely on expert judgment concerning technical biodiversity calculations where the chosen methodology is rationally justified and consistent with the permission and applicable guidance.

Two linked judicial review claims challenged Buckinghamshire Council’s approval of reserved matters and discharge of conditions concerning a residential development near Maids Moreton. Wildfish challenged the use of a section 73 permission, the acceptance of amendments without further consultation, the treatment of foul-water capacity and environmental impact assessment screening, and alleged failures concerning officer reports and background papers.

Ms Wood challenged amendments to the reserved-matters application and the discharge of a biodiversity net gain condition. The principal issues were whether the application had been impermissibly changed after the relevant time limit, whether the Council had acted unlawfully in relying on the Defra 2.0 biodiversity metric, and whether the officer’s report materially misled the Committee.

1. Wildfish claims dismissed. The foul-water drainage scheme required by condition 13 was not a reserved matter. The statutory definition of reserved matters is confined to the matters identified in the development order. The reference in condition 13 to details submitted in accordance with condition 1 did not alter that position. Accordingly, the 18-month time limit for reserved matters did not apply to discharge of condition 13; the general statutory time limit applied instead.
2. A permission granted under section 73 of the Town and Country Planning Act 1990 is a new, independent permission which sits alongside the original permission. It was therefore lawful to consider the existing reserved-matters application by reference to the section 73 permission and to amend the description of the application to identify that permission. The amendment did not remove any matter originally submitted for approval or alter the whole character of the application.
3. The October 2024 changes to the reserved-matters application did not, individually or cumulatively, amount in substance to a new application. The assessment was one for the Council’s planning judgment, subject to ordinary public law review. The reduction from 163 to 153 dwellings, together with the other changes, did not make the Council’s conclusion irrational.
4. There was no statutory duty to consult on the reserved-matters application. Fairness did not require further consultation. Objectors had already participated in consultation concerning the section 73 permission and had access to the officer’s report and supporting material. The subsequent amendment merely clarified the permission against which the application was to be considered.
5. The officer’s report did not materially mislead the Committee on foul-water capacity. The retained condition prevented occupation until the necessary upgrades had been agreed and completed. The Council was entitled to rely on Anglian Water’s statutory obligations and assurances, and to conclude that there was a real prospect that upgrades would occur. The Ofwat email was either not a statutory background paper or, alternatively, any non-compliance caused no prejudice and would not have made a substantial difference to the outcome.
6. The failure to undertake further environmental impact assessment screening was lawful. The Council accepted the earlier analysis in Hardcastle, and rationally concluded that there had been no significant change in circumstances capable of altering the negative screening conclusion.
7. Wood claim dismissed. Condition 22, read in its context, permitted use of the Defra 2.0 calculation tool. The Council was entitled to accept the 0.67 hedgerow creation multiplier, having regard to the inconsistency between the technical materials and the tool, the need for consistency with the outline permission, and the reasoned advice of its Ecology Team. The Council had sufficient information to discharge the condition and was not required to adopt Professor Shreeve’s alternative calculations.

A previous judicial review challenging the grant of outline planning permission was dismissed by the High Court in R (Hardcastle) v Buckinghamshire Council [2022] EWHC 2905 (Admin). The present court dismissed both linked judicial review claims on all grounds.