Town and country planning – Environment – Habitats Directive – Claimant seeking to challenge decision of defendant local authority not to take enforcement action in respect of unauthorised development – Whether defendants failing to have proper regard to requirements of Habitats Directive in relation to protection of bats – Application dismissed
Gabbro rock had been quarried at Dean Point, St Keverne, with the benefit of planning permission, since 1947. The site was in the Lizard section of the Cornwall Area of Outstanding Natural Beauty (AONB). In 2008, for commercial reasons, extraction ceased and the quarry became non-operational. In 2012, following a review of a minerals planning permission, permission was granted by the defendant local planning authority, as the relevant mineral planning authority, for the carrying out of quarrying operations until 2035 (the ROMP permission). The defendants had properly addressed environmental issues before granting that permission, which included conditions, but none in relation to perimeter fencing.
In 2014, the interested party, then a prospective purchaser of the site, applied for permission for development ancillary to the operation of the quarry, including the erection of a fence around part of its perimeter. Although the defendants granted permission, that decision was subsequently quashed. In the meantime, the interested party purchased the site and erected the fence. Following the successful judicial review, the erection of the fence became unauthorised development.
The claimant, a private company limited by guarantee formed for the purpose of opposing the reopening of the quarry, sought to challenge the defendants’ decision not to take enforcement action in respect of that unauthorised development, notably in the form of an enforcement notice. The claimant contended that, in exercising its functions in determining whether to take enforcement action, the defendants had acted unlawfully in failing to have proper regard to the requirements of EC Council Directive 92/43/EEC (the Habitats Directive) in relation to the protection of bats.
Held: The application was dismissed.
(1) Section 17b of the National Planning Practice Guidance, “Ensuring effective enforcement” (NPPG) stated that enforcement action should be proportionate to the breach of planning control to which it related and taken when it was expedient to do so. Where the balance of public interest lay would vary from case to case. Under that guidance, a planning authority should usually not take enforcement action when, in its assessment, an application for retrospective permission provided a better process for dealing with the relevant planning issues. National policy and guidance was reflected in the defendants’ own policy which provided that formal enforcement action would not be instigated solely to regularise breaches in planning control or seek a planning fee. In deciding whether to take enforcement action the defendants had regard to the development plan and to any other material considerations, including (but not limited to) protection of species. In considering whether it was expedient to take enforcement action the decisive issue for the defendants was whether the breach of planning control unacceptably affected public amenity or the environment. Any action was to be proportionate with the breach of planning control to which it related.
(2) Where a developer was acting in breach of planning control, the statutory scheme assigned the primary responsibility for deciding whether to take, and if so what, enforcement steps, to the relevant local authority. Where the assertion was that the decision made was unreasonable or disproportionate, the court would be particularly cautious about intervening. In the present case, the defendants, as enforcement authority, had a wide discretion as to whether any, and if so what, enforcement action should be taken in respect of the fence as unauthorised development. Although the main concern might have been in respect of the visual impact of the fence, it was clear that the potential adverse effect on bats was also in the mind of the defendants at all relevant times. It was to be noted that the fence was not continuous, few bats had ever been identified at the site and there was no evidence that many bats were ever roosting or foraging there. Proceeding on the basis that the impact of the fence on bats was, at most, minor was justified. The effect of the quarrying operations on bats had been reduced to insignificant by the mitigation that had been put in place by the ROMP permission conditions, including the requirement that the location of blasting operations be pre-approved by the defendants: R (on the application of Prokopp) v London Underground Ltd [2003] EWCA Civ 96; [2004] 1 P&CR 31; [2003] PLSCS 166, Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin); [2010] PLSCS 285 and R (on the application of Health and Safety Executive) v Wolverhampton City Council [2012] UKSC 34; [2012] PLSCS 172 considered.
(3) The main reason for the defendants taking no further enforcement action was because the interested party intended to make a retrospective planning application in respect of the fence, which would be accompanied by an Environmental Statement and would be the subject of a full EIA including consultation. In line with national guidance, the defendants considered that that would be the appropriate process for considering relevant factors including the impact of the fence on bats; it would be proportionate to allow the interested party time to make that application; and that process would enable the defendants to impose conditions to regulate matters such as mitigation by way of landscaping and the length of time for which the fence would be authorised. It was open to the defendants to consider that that process would better address its obligations under the Habitats Directive so as to fulfil regulation 9(3). The court was wholly unpersuaded that the defendants acted in breach of the obligation under regulation 9(3) when deciding not to take any immediate further enforcement steps in respect of the fence. Their decision was a lawful and legitimate exercise of discretion under section 172 of the Town and Country Planning Act 1990; and fully consistent with both principle and relevant guidance.
Per curiam: Generally, absent extraordinary circumstances, the court should be slow to entertain applications in respect of a failure to take enforcement action against particular unauthorised development. Whilst not suggesting that the application in this case had been improperly made, that was particularly so where, as here, the focus of the claimant’s real complaint was not upon the unauthorised development in itself, but upon other related authorised development which it was committed to stop.
John Pugh-Smith (instructed by Stephen Scown LLP) appeared for the claimant; Sancho Brett (instructed by Cornwall Legal Services) appeared for the defendants; David Elvin QC and Richard Moules (instructed by DLP Piper UK LLP) appeared for the interested party.
Eileen O’Grady, barrister
