Development – Green belt – Special protection area (SPA) – Claimant council refusing permission for residential development – Defendant secretary of state finding development unlikely to have significant adverse effect on SPA – Defendant allowing appeal without appropriate assessment – Whether defendant erring in law – Application dismissed
The second and third defendant developers made four planning applications for residential development of land designated as a special protection area for birds (SPA), under EC Council Directive 92/43 (the Bird Directive), through the Conservation (Natural Habitats, etc) Regulations 1994 (SI 1994/2716).
Natural England (previously English Nature) had advised the competent authorities that residential development within 5 km of the SPA was likely to have a significant effect upon the site because of the increased number of dog walkers that would disturb nesting birds. It therefore recommended that planning permission should be refused unless satisfactory mitigation measures were provided.
The second and third defendants proposed a package of avoidance and mitigating measures at the initial screening stage of their applications in the form of suitable alternative natural green space (SANGS) in support of their proposal.
The claimants refused planning permission and the second and third defendants appealed to the first defendant. Following an inquiry, the first defendant’s inspector recommended that the appeals should be dismissed. However, the first defendant decided that the proposed development would not significantly affect the SPA; it was not therefore necessary to make an appropriate assessment of the implications for the site in view of its conservation objectives under regulation 48(1)(b) of the 1994 Regulations. Accordingly, she allowed the appeals.
The claimants brought an application, under section 288 of the Town and Country Planning Act 1990, to quash that decision contending, inter alia, that the first defendant had erred in law in concluding that planning permission could be granted in the absence of an appropriate assessment and in failing to consider the conclusions of her inspector regarding the effect of the development upon the integrity of the SPA.
Held: The application was dismissed.
In considering the need for an appropriate assessment, it was necessary to establish whether there was a mere probability of the project significantly affecting, either individually or in combination, the site’s conservation objective. If there were, the competent authority should undertake an appropriate assessment, having regard to conservation objectives. After that stage, mitigation measures might be considered. The project should be authorised only if scientific evidence could show that such effects would not arise: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Natuurbeheer en Visserij (Case C-127/02) [2005] All ER (EC) 353 considered.
Where a proposed development could or would have a significant adverse effect upon an SPA but for remedial measures, it would not be right to require the secretary of state to ignore a package of avoidance and mitigating measures when determining whether an appropriate assessment should be carried out. The nature of any proposed remedial measures, the extent to which they had been particularised, their complexity and the prospect of their successful implementation should all be considered: Gillespie v First Secretary of State [2003] EWCA Civ 400; [2003] 3 PLR 20 considered.
If the mitigation measures could be predicted with confidence, it would be reasonable to take them into account in determining whether an appropriate assessment was required. Anything that could mitigate the harmful effects of residential development should be encouraged at the earliest opportunity. Furthermore, it would make no sense for the claimants to have to disaggregate the components of measures in a package at the initial screening stage to enable an appropriate assessment to be carried out when they would have to be reassembled at a later stage for the purposes of assessing whether a development was likely to have a significant effect upon an SPA: R (on the application of Catt) v Brighton and Hove City Council [2007] EWCA Civ 298; [2007] 2 P&CR 11 considered.
Stephen Hockman QC and Anne Williams (instructed by Sharpe Pritchard) appeared for the claimants; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; Mary Cook and Asitha Ranatunga (instructed by Boyes Turner, of Reading) appeared for the second and third defendants; Keith Lindblom QC and Craig Howell-Williams (instructed by Addleshaw Goddard) appeared for the first interested party; Richard Drabble QC and Richard Machin (instructed by Browne Jacobson, of Nottingham) appeared for the second interested party.
Eileen O’Grady, barrister
