Development – Material consideration – Conservation – Appellant objecting to planning application – Likelihood of interference with biodiversity of invertebrates – Respondents granting conditional planning permission – High Court refusing application for judicial review – Whether respondents failing to take account of material considerations – Appeal dismissed
In 2006, the interested party applied to the respondents for planning permission to construct and operate a distribution depot on the site of a former power station. The appellant charity objected to the proposed development on the ground that the site was of national importance as a habitat for rare and endangered invertebrates. Natural England initially objected to the application. However, it subsequently withdrew its objection following the recommendation by planning officers that the application should be approved subject to the completion of an obligation, under section 106 of the Town and Country Planning Act 1990, and the imposition of planning conditions. Permission was granted in November 2006, subject to 30 conditions one of which required the developer to submit a phasing plan for the development to ensure that regard would be had to the provision of suitable compensatory habitats.
The appellant applied for judicial review to quash the decision, contending that the respondents had: (i) erred in granting permission without first examining possible alternative locations; (ii) failed to satisfy themselves as to whether the need for development clearly outweighed the desirability of protecting the site for its wildlife; and (iii) failed to ensure that the proposed mitigation measures were subject to and formed part of the environmental assessment. In that context the importance of phasing was such, it was submitted, that it was necessary to have in place, before permission was granted, a plan that had been subject to environmental assessment. Only then could the extent of damage be assessed. It was argued that those issues had not been addressed when permission was granted.
The High Court dismissed the application. It held that the respondents’ conclusion that any long-term harm would not be significant, and that any short-term harm would be alleviated by the recommended mitigating measures, were fair and it was therefore unnecessary to follow the steps required by PPS 9 on biodiversity and geological conservation. The appellants appealed.
Held: The appeal was dismissed.
The obvious advantages of the application site for a distribution depot in the context of a planning application in an urban development area, taken together with the limited adverse effects on the conservation of biodiversity, the opportunities for mitigation and the positive benefits for the environment, rendered the respondents’ approach appropriate and lawful. They were entitled to take a long-term view based upon the information before them, including the planning officers’ reports and detailed representations from Natural England. The planning conditions attached to the permission and the detailed section 106 agreement were, as Natural England accepted, a valuable safeguard.
In some cases, a permission could not properly be granted in the absence of appropriate and enforceable proposals for mitigation or a predetermined phasing plan or both. Further consultation procedures could also be required depending upon the circumstances, as could a decision upon whether an environmental statement was required or whether the planning authority had sufficient information: Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400; [2003] 2 P&CR 236 and R v Rochdale Metropolitan Borough Council, ex parte Milne (No 2) [2001] Env LR 22 considered.
In the instant case, it was not necessary for the respondents to require a complete blueprint of phasing in advance of the grant of permission. They had made an assessment, considered proposals for mitigation, required a section 106 agreement and imposed a phasing condition. That was sufficient to meet the case. The appropriate phasing would depend upon the detailed development and its emerging effect upon the environment, including invertebrates, for which provision had been made.
Michael Fordham QC and Emma Dixon (instructed by Richard Buxton Solicitors Environmental and Public Law, of Cambridge) appeared for the appellant; Timothy Straker QC and Caroline Bolton (instructed by Berwin Leighton Paisner) appeared for the respondents; William Hicks QC and Reuben Taylor (instructed by Wragge & Co) appeared for the interested party.
Eileen O’Grady, barrister
