DLA Delivery Ltd v Baroness Cumberlege of Newick & Anor [2018] EWCA Civ 1305
Cumberlege is an important Court of Appeal authority on mandatory material considerations, consistency between planning decisions and the precautionary approach required where outline permission may affect a European protected site.
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- Neutral citation
- [2018] EWCA Civ 1305; [2018] PTSR 2063
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 8th June 2018
- Judge
- Lindblom LJ, Moylan LJ and Peter Jackson LJ
- Case number
- C1/2017/2379
Some unlisted considerations are legally mandatory
Where legislation does not expressly require a particular matter to be considered, failure to consider it is unlawful only where the matter is so obviously material that no reasonable decision-maker would have omitted it.
A recent materially similar decision can require attention
The Secretary of State had recently reached a materially relevant conclusion in another appeal but failed to consider that decision in the Newick appeal. The Court held that consistency in administrative decision-making can make such a decision a mandatory relevant consideration, even where the parties did not expressly put it before the decision-maker.
If a decision-maker departs from a materially comparable earlier decision, the difference may need to be explained.
The Habitats Regulations required certainty at outline stage
The Court also considered housing close to the Ashdown Forest protected sites. An outline permission could not lawfully be granted merely on the expectation that later reserved matters would avoid the prohibited effect. The competent authority had to be satisfied that development harmful to the protected site could not be carried out under the permission, whether before or after approval of reserved matters. The test was not whether harmful development was unlikely in practice, but whether the outline permission legally prevented it from being carried out.
Read the judgment
The full Court of Appeal judgment is available from BAILII: DLA Delivery Ltd v Baroness Cumberlege [2018] EWCA Civ 1305.
Planning Geek also holds the full judgment in the protected case law library. Gold Members can open it below.
Cumberlege Case Law Page Updated: 11th September 2026