Town and country planning – Environment – Outline planning permission – Claimant parish council applying for statutory review of decision of first defendant secretary of state to grant outline planning permission for major mixed-use development – Whether environmental statement accompanying planning application containing sufficient information to assess environmental impact – Whether first defendant breaching EIA Directive and Habitats Regulations – Application dismissed
The third defendant owned land at Wolborough Barton, Coach Road, Newton Abbot and applied for outline planning permission for a 1200 dwelling residential-led mixed use development, and full permission for a change of use of agricultural buildings on the land. The application was supported inter alia by an environmental statement (ES). The claimant parish council objected to the application and the second defendant local authority refused planning permission. Following a planning inquiry, an inspector appointed by the first defendant secretary of state allowed an appeal by the third defendant. The first defendant agreed with the inspector’s findings that the ES, along with other documents, contained sufficient information for him to assess the environmental impact of the proposed development and granted permission subject to conditions.
The claimant applied for a statutory review of that decision pursuant to section 288 of the Town and Country Planning Act 1990. The principal issues were: (i) whether the ES was deficient, and in breach of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 due to the omission of a chapter dealing expressly with the impact of the development on greenhouse gas (GHG) generation and climate change; and (ii) whether reservation to the reserved matters stage of details as to how the impact of development would avoid adverse impacts on the rare greater horseshoe bat (GHB) population of the South Hams Special Area of Conservation was consistent with the 2011 Regulations and the Conservation of Habitats and Species Regulations 2017. The second defendant did not particulate in the proceedings.
Held: The application was dismissed.
(1) The adequacy of the ES fell to be assessed according to conventional Wednesbury principles, as set out by the Supreme Court in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52; [2021] EGLR 5. The 2017 Regulations gave effect to Directive 92/43/EEC (the Habitats Directive) in domestic law. By regulation 70(3) of the 2017 Regulations, UK domestic law expressly required an authority to undertake an appropriate assessment before granting outline planning permission, in those applications where the assessment criteria in regulation 63 of the 2017 Regulations were met. While a high standard of investigation was required, the assessment had to be appropriate to the task in hand, and it ultimately rested on the judgment of the local planning authority. The question was what would happen to the site if the plan or project went ahead; and whether that was consistent with maintaining or restoring the favourable conservation status of the habitat or species concerned. Following assessment, the project in question might only be approved if the authority was convinced that it would not adversely affect the integrity of the site. Where doubt remained, authorisation would have to be refused. Absolute certainty was not required. If no certainty could be established, having exhausted all scientific means and sources, it would be necessary to work with probabilities and estimates, which had to be identified and reasoned. The decision-maker had to consider secured mitigation and evidence about its effectiveness. It would require some cogent explanation if the decision-maker had chosen not to give considerable weight to the views of the appropriate nature conservation body. The relevant standard of review by the court was the Wednesbury rationality standard, and not a more intensive standard. Mitigation measures would be taken into account when undertaking an appropriate assessment: R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] PLSCS 131; R (Champion) v North Norfolk District Council [2015] EGLR 59; Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PLSCS 75 and Mynnyd y Gwynt Ltd v Secretary of State for Business Energy and Industrial Strategy [2018] EWCA Civ 231; [2018] PLSCS 35 applied.
(2) Climate change fell within Part 1 of schedule 4 to the 2011 Regulations. It followed, pursuant to the definition of “environmental statement” in regulation 2 of those regulations, that the first defendant was only required to consider the adequacy of such information on climate change in the ES as “may reasonably be required”. The first defendant had a wide range of autonomous judgment on the adequacy of the information provided and was free to form a reasonable view of his own on the nature and amount of information required. There was no separate ground of review where there was a patent defect in assessment. The first defendant was entitled to conclude that the information provided was sufficient, and that no further information, including on climate change, was reasonably required, by reference to the inspector’s report and other material before him.
It was apparent that the first defendant had climate change issues well in mind and acted rationally. The claimant had not surmounted the high hurdle of demonstrating that the first defendant exercised his judgment irrationally in concluding that he had the environmental information which was reasonably required to determine the appeal, in accordance with article 2(1) of Directive 2011/92/EU (the EIA Directive) and regulation 3(4) of the 2011 Regulations.
Even if there was an error of law in determining the appeal without more information about GHG emissions, the court would have declined to quash the decision, because it would inevitably have been the same, applying the test in Simplex GE (Holdings) v Secretary of State for the Environment [1989] 57 P&CR 306 and Canterbury City Council v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin).
(3) Biodiversity, in particular the impact on GHBs, also fell within Part 1 of schedule 4 to the 2011 Regulations. It was reasonable for the first defendant to conclude that the identification of the location of GHB corridors and habitat, and “dark areas” in the lighting strategy, was most appropriately and effectively undertaken in conjunction with the proposals for the detailed design and layout of the development.
The first defendant undertook an appropriate assessment, drawing on the inspector’s findings. His decision imposed a framework of planning conditions relating to GHBs which set out clearly defined parameters for the approval of reserved matters, which enabled the first defendant to conclude, with sufficient certainty, that the proposed development would not adversely affect the integrity of a special area of conservation. Accordingly, the first defendant had complied with regulation 70(3) of the 2017 Regulations.
Estelle Dehon and Paul Stookes (instructed by Richard Buxton Solicitors) appeared for the claimant; Guy Williams (instructed by the Government Legal Department) appeared for the first defendant; Charles Banner QC and Matthew Henderson (instructed by Clarke Willmott LLP) appeared for the third defendants; the second and fourth defendants did not appear and were not represented.
Eileen O’Grady, barrister
