Town and country planning – Residential development – Habitats Directive – Planning inspector granting planning permission for development on appeal – Whether properly assessing likely effects of development on a nearby European protected site pursuant to article 6(3) of Habitats Directive – Whether entitled to conclude at stage of screening assessment that no significant effects likely – Appeal dismissed
The appellant represented an association of local residents who objected to proposals for a development of 65 dwellings on agricultural land in Exminster, Devon. The development site was close to areas designated as a European protected site for wildlife, namely a special protection area for birds and a special area of conservation, which enjoyed protection under Council Directive 92/43/EEC (the Habitats Directive). The planning application for the development was accompanied by an ecological assessment. After assessing the likely impact of the development, the local planning authority concluded that, having regard to certain proposed mitigation measures, the development would have no significant adverse impact on the SPA or the SAC; however, they refused planning permission for other reasons.
The developer’s appeal was allowed by the respondent’s planning inspector, who found that there was no real possibility of the development having any appreciable adverse effect on the integrity of the protected sites. He granted planning permission subject to conditions and a unilateral undertaking offered by the developer, under section 106 of the Town and Country Planning Act 1990, to pay a certain sum as a conservation contribution.
The appellant brought proceedings under section 288 of the 1990 Act for an order quashing the planning permission. Her primary contention was that the inspector had failed properly to assess the effects of the development on the European protected site as required by article 6(3) of the Habitats Directive, implemented into domestic law by regulation 61 of the Conservation of Habitats and Species Regulations 2010. Her claim was dismissed in the court below: see [2013] EWHC 3844 (Admin); [2014] PLSCS 26. The appellant appealed.
Held: The appeal was dismissed.
Article 6(3) of the Habitats Directive provided for two stages of assessment. It first required a “screening assessment” as to whether a plan or project was likely to have a significant effect on a protected site; then, if such an effect could not be ruled out at the screening stage, an “appropriate assessment” of the effects was required.
The local planning authority had reached the view, on a screening assessment, that the proposed development would be likely to have a significant effect on the protected sites. They had then proceeded to make an “appropriate assessment” in which they had concluded that, in light of proposed mitigation measures which they had not considered at the screening stage, the proposed development would not after all adversely affect the integrity of the protected sites.
However, it would have been legitimate for the local planning authority to bring mitigation measures into consideration into account in making the screening assessment: Hart District Council v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] 2 P&CR 16; [2008] PLSCS 131 applied. The inspector had taken that approach on the appeal. He had been entitled to conclude at the first stage, namely the screening assessment, that the proposed development, even when combined with other development, would not be likely to give rise to any significant effects on the protected sites. On that approach, no separate “appropriate assessment” was required. If preventive safeguarding measures had the effect of preventing harmful effects from arising, or reduced them to a level where they were not significant, then the conservation objectives of article 6(3) were fulfilled to the requisite standard and there was no further discernible or proportionate justification for preventing the plan or project from proceeding. That situation was distinguishable from cases where, on the other hand, the proposed measures would not prevent harm from occurring, but the competent authority was asked to allow harm to a protected site to occur on the basis that it would be counter-balanced and offset by other measures to enhance the environment elsewhere or in other ways. In such cases, the preventive and precautionary objectives of article 6(3) would not be met, such that the mitigation measures could not be taken into account when applying article 6(3) and the authority would instead have to be satisfied that such harm could be justified under article 6(4).
Although a strict precautionary approach applied when making a screening assessment under the first limb of article 6(3), such that a screening opinion would only in very limited circumstances preclude the need for an appropriate assessment, such circumstances existed in the instant case. The inspector had information before him which he could rationally and lawfully regard as “objective information” and “the best scientific knowledge in the field” for the purposes of proceeding under article 6(3). The developer’s ecological expert had given evidence which demonstrated a good understanding of the particular ecological and mitigation features relevant to the protected sites and which drew on specific information relevant to those sites, as well as the development site and proposed mitigation measures, in a manner which supported his expressions of expert opinion. He had discussed the impact of the development site on the protected sites both on a stand-alone basis and also in combination with other projects. The inspector had been entitled to rely on objective expert evidence of that kind in making his assessment for the purposes of article 6(3) and to conclude, on the basis of that evidence, that the compatibility of the proposed development could be determined under the first limb of article 6(3), on a screening assessment, without the need to proceed further to conduct an “appropriate assessment” under the second limb. Although an appropriate assessment would be required in cases where there was any doubt about whether there might be significant effects on a protected site, there had been sufficient material to enable the inspector to be sure, to the requisite standard under the first limb of article 6(3), that there would be no significant adverse effects on the protected site if he granted planning permission for the development: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij Case C-127/02 [2005] 2 CMLR 31 considered.
The inspector’s decision fell to be reviewed according to the usual Wednesbury rationality standard. The court was not required, when applying EU law under the Habitats Directive, to apply a more intensive standard of review or to make its own assessment afresh as a primary decision-maker. The inspector’s decision was not unreasonable on Wednesbury grounds: R (on the application of Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114; [2013] JPL 1027 and Commission of the European Communities v United Kingdom Case C-508/03 [2006] QB 764 applied; R (on the application of Evans) v Attorney General [2014] EWCA Civ 254; [2014] QB 855 distinguished.
Gregory Jones QC and David Graham (instructed by Leigh Day) appeared for the appellant; James Maurici QC (instructed by the Treasury Solicitor) appeared for the respondent; Rhodri Price Lewis QC (instructed by Ashfords LLP, of Exeter) appeared for the interested parties.
Sally Dobson, barrister
Read a transcript of Smyth v Secretary of State for Communities and Local Government here
