In R (Community Against Dean Super Quarry Limited) v Cornwall Council [2017] EWHC 74 (Admin) Hickinbottom J rejected a claim by objectors to quarrying operations that the authority’s decision to pause enforcement action was unlawful in light of EC Council Directive 92/43/EEC (“the Habitats Directive”) and the Conservation of Habitats and Species Regulations 2010 (“the Habitats Regulations”) transposing it.
The authority had approved a review of minerals permission (ROMP). Fencing was needed (and erected) to allow operations to resume before the ROMP expired. The standalone permission for fencing had been quashed (due to lack of EIA), but it remained. The authority did not enforce, given an imminent application for retrospective permission (which it determined required EIA due to visual impacts). The objectors eventually challenged the authority’s decision not to enforce as in breach of Regulation 9(3) of the Habitats Regulations on the basis of a lack of knowledge about the impact of the fencing on bats. They sought a declaration that the resumption of quarrying before the ROMP expiry had been unlawful (and the ROMP could therefore not be saved).
The judge, rejecting the claim, held that:
(1) the enforcement pause was a lawful and legitimate exercise of the authority’s “especially wide margin of discretion” in relation to what, if any, enforcement action should be taken.
(2) The period for enforcement was not about to expire and the pause would not have led to the development achieving immunity (so requiring enforcement, Ardagh Glass Limited v Chester City Council [2009] EWHC 745 (Admin) distinguished).
(3) The authority had environmental effects in mind when deciding to pause.
The reports to that point had addressed environmental issues in the round, including bats, he held. The officer was entitled in the delegated report to focus on the main issues. Any error was shown by the subsequent ES to be immaterial.
(4) The ES had to consider the impact of the change or extension (fencing) on the ROMP consent development, but with a focus on the effect of the change or extension itself. The wider issues in relation to the quarry (e.g. traffic movements, noise, blasting, dust) did not have to be (re)assessed in the Environmental Statement for the fence.
(5) While the fencing was necessary on health and safety grounds, its unlawfulness could not infect the resumed ROMP consent operations.
The Courts continue to focus on the substance rather than simply the form of environmental decision-making in the planning arena. Unless there is an extraordinary, Ardagh type reason, they will rarely accept claims over non-enforcement (particularly where the claimant’s concern is not the unauthorised development, but preventing other, authorised, development).
Roy Pinnock
