Planning permission – Consultation – Respondents granting planning permission for development following consultation with Natural England – Whether failure to follow advice of Natural England amounting to non-compliance with legal duty – Application of Conservation of Habitats and Species Regulations 2010 – Whether planning agreement subject to which permission granted unnecessary to overcome legitimate planning objection contrary to regulation 122 of Community Infrastructure Levy Regulations 2010 – Appeal dismissed
The appellant objected to a grant of outline planning permission by the respondent council, in April 2013, for a large mixed-use development including 1,700 dwellings on a 169 ha site close to Harlow Wood, Mansfield. The wood formed part of the Sherwood Forest region, in which there were substantial breeding populations of nightjar and woodlark, and was close to a designated site of special scientific interest (SSSI). The development proposals included a mitigation protocol with regard to any effects on those populations, including the use of barrier fencing. The respondents consulted with Natural England before granting planning permission, as they were obliged to do owing to the SSSI designation.
As required by the terms of the permission, the developer negotiated a planning agreement with the respondents, under section 106 of the Town and Country Planning Act 1990, in terms that if the planning permission were revoked or modified in the future under the review provisions of the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations), which would apply if Sherwood Forest were designated as a special protection area (SPA), the developer would repay any consequential compensation that the respondents were obliged to pay to it.
The appellant brought judicial review proceedings to challenge the lawfulness of the grant of planning permission. She contended that, inter alia: (i) in breach of their legal duty, the respondents had failed to follow Natural England’s advice to carry out a “risk-based assessment” premised on the possibility that the Sherwood Forest region, including Harlow Wood, might in future be designated as a SPA, or be proposed by the government as a potential site for such designation (pSPA); and (ii) in granting planning permission, the respondents had placed weight on a section 106 agreement which was unlawful so far as it promised to eliminate financial risk to the council, which neither overcame a legitimate planning objection nor was necessary in order to do so, contrary to regulation 122 of the Community Infrastructure Levy Regulations 2010. The claim was dismissed and the appellant appealed.
Held: The appeal was dismissed.
(1) Although the respondents were obliged to consult Natural England about the potential impact of the development of the SSSI, no complaint was made in that regard; instead, the appellant’s claim related to the failure of the respondents to follow Natural England’s advice to carry out a risk-based assessment in relation to the potential impact of the development on a possible SPA. While planning authorities were obliged to consult Natural England, under regulation 61(3) of the Habitats Regulations, if they were considering a grant of planning permission which was likely to have a significant effect on such a site, that consultation was “for the purposes of” the required assessment of the implications of the development for that site. Accordingly, if no assessment was required, then no consultation was required. Although, under para 118 of the National Planning Policy Framework (NPPF), a planning authority’s obligations were extended to pSPAs, a site only became a pSPA for that purpose once the government had initiated consultation on the proposed designation. That had not happened in the case of Sherwood Forest. It followed that the respondents had no obligation to consult Natural England about the potential impact of the development on nightjar or woodlark. While Natural England did have the power to give advice to the respondents under regulation 129 of the Habitats Regulations, and that advice, coming as it did from an expert body, would have been a material consideration, any argument that the respondents had given inadequate weight to the advice was almost bound to fail given that questions of weight were matters for the decision maker, particularly on issues that involved planning judgments. Natural England was not in the position of a statutory consultee in relation to the effects of the development on Sherwood Forest. The appellant’s grounds of challenge were ill-founded so far as they were premised on the failure of the respondents to take into account the results of a consultation that they were not obliged to undertake.
Moreover, the “risk-based assessment” advised by Natural England related not to any possible change in the physical landscape but to a change in the legal position in the event of a designation as an SPA, which would necessitate a review of the planning permission. The nesting habits of nightjar and woodlark would be affected to the same extent by the development whether or not Harlow Wood formed part of an SPA. How the respondents chose to confront the issue of possible SPA designation was a matter for them. They had addressed it both by accepting the developer’s proposed protocol for mitigation measures, which they considered to represent a comprehensive and carefully considered approach, and by the terms of the section 106 agreement protecting them against the risk of having to compensate the developer for loss caused by the revocation or modification of the permission.
There was no failure by the respondent to comply with their separate duty, under regulation 9A(8) of the Habitats Regulations, to use all reasonable endeavours to avoid any pollution or deterioration of habitats of wild birds. Their adoption of the developer’s mitigation protocol was sufficient to comply with that duty. The Habitats Regulations, supplemented by the NPPF, did not require a local planning authority to undertake a “shadow assessment” or other quasi-appropriate assessment in respect of sites that were not even pSPAs.
(2) The requirements of regulation 122 of the Community Infrastructure Levy Regulations 2010 would only be engaged in relation to a planning obligation if the particular obligation in question was a reason for granting planning permission. If the proposed development was acceptable in planning terms, the securing of additional benefits by means of a planning obligation was not unlawful: Derwent Holdings Ltd v Trafford Borough Council [2011] EWCA Civ 832 applied. Regulation 122 did not apply to the section 106 agreement so far as it provided for repayment of compensation in the event that the planning permission was revoked or modified. That provision had not been used to overcome a planning objection to development since it would operate only if the development did not go ahead. It would come into play only in the event that the permission was revoked or modified, which would be impossible once the development had been built. The respondents had considered the development to be acceptable in planning terms even without the relevant clause of the section 106 agreement.
Douglas Edwards QC and Annabel Graham Paul (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Andrew Hogan (instructed by Ashfield and Mansfield Shared Legal Service) appeared for the respondents; David Elvin QC (instructed by Marrons Shakespeares, of Leicester) appeared for the developer as the interested party.
Sally Dobson, barrister
