Planning permission – Environmental impact assessment – Habitats Directive – Claimant applying for judicial review of defendants’ decision to grant outline planning permission for housing development — Whether defendants in breach of Habitats Directive in failing to undertake and publish environmental impact assessment (EIA) screening opinion prior to granting permission – Application granted in part
The claimant was an independent charity dedicated to caring for and protecting the natural environment in Devon. The defendant planning authority granted outline planning permission to the interested party developer for up to 230 dwellings and 2,500 sq m employment space on land at Station Hill, Chudleigh, Devon. The site covered an area of approximately 12.3 ha to the west of Chudleigh, about 900 metres from the town centre. Next to the site were two fields which had been set aside in perpetuity as dedicated bat habitat and open space managed specifically for bats. That land had been transferred to the claimant for management.
The claimant had objected to the planning application for the site because of the adverse impact of the proposed development a special area of conservation (SAC), designated under European Council Directive 92/43/EEC (on the conservation of natural habitats and wild fauna and flora) (the Habitats Directive), as an area of recognised nature conservation importance at a European level for the protection of the greater horseshoe bat (GHB). Under the Habitats Directive and the Habitats Regulations (SI 2010/490), where plans and projects might possibly have a likely significant effect on an SAC, the competent authority had to make an appropriate assessment (AA) of the implications for the site in view of the SAC objectives.
The claimant was concerned that the proposed development would interfere with vital GHB flyways and foraging area and applied for judicial review of the decision to grant planning permission on several grounds including that, contrary to European Council Directive 2011/92/EU (the EIA Directive), as implemented in the UK by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824), the defendants had failed to undertake and publish an environmental impact assessment (EIA) screening opinion prior to granting planning permission.
Held: The application was granted in part.
(1) In considering whether a project would be likely to have significant effects on the environment, the relevant authority had to exercise its planning judgment taking into account all material factors. In making that practical judgment, the authority was not as a matter of law required to ignore proposals for remedial or mitigation measures which might be a material factor which it was required to take into account. The authority had to decide whether, on the information available to it, the proposal (including any remedial or mitigation measures) was likely to have significant effects on the environment, having regard to the precautionary principle and to the degree of uncertainty with regard to the measures at the date of the decision. In some cases, there would be such uncertainties that the proper implementation of the measures could not be assumed. However, in other cases, the effectiveness of conditions or proposed remedial or ameliorative measures would not be crucial to the opinion; or, alternatively, at the time of consideration that effectiveness could be predicted with confidence. In those cases, the authority might properly decide that, looking at the project as a whole, there was no serious possibility of significant effect on the environment. An important factor in that prediction might be the approval of the measures by a body, such as Natural England, which had the role of ensuring that nature and landscape was appropriately protected. Whether the authority has sufficient information to make a decision that there would likely be no significant effects on the environment – and, if it had such information, the screening decision itself – were matters of planning judgment, in respect of which the authority had a wide discretion: R (on the application of Lebus) v South Cambridgeshire District Council [2002] EWHC 3009 (Admin); [2002] PLSCS 200, Bellway Urban Renewal Southern v Gillespie [2003] EWCA Civ 400, R (on the application of Jones) v Mansfield District Council [2003] EWCA Civ 1408; [2003] PLSCS 227, R (on the application of Catt) v Brighton and Hove City Council [2007] EWCA Civ 298; [2007] PLSCS 69, Hargreaves v Secretary of State for Communities and Local Government [2012] EWCA Civ 241; and R (on the application of Loader) v Secretary of State for Communities and Local Government [2012] EWCA Civ 869; [2012] PLSCS 147 considered.
In the present case, the defendants accepted that they were in breach of the EIA Regulations by not adopting and properly publishing a screening decision in timely way before granting planning permission and the claimant was entitled to a declaration to that effect.
(2) However, it was well-established that the quashing of a subsequent, dependent planning decision did not automatically follow from a failure of an authority to comply with the EIA Directive and Regulations. The court dealt with matters in the real world and should be slow to grant relief where the challenged decision would inevitably have been the same but for the breach of obligation, neither the claimant nor anyone else had suffered any real prejudice, and there was no other good ground for relief being granted.
On balance, this was a case in which to exercise the court’s discretion in favour of not quashing the grant of permission. The claimant, and other parties interested in the application, had had an opportunity to make representations on the planning application and had done so. Natural England had approved the AA and mitigation measures and the approach to delivery and it specifically concluded that the proposed development would not adversely affect the integrity of the protected site at outline stage. To quash the decision and remit the application to the defendants would be empty. Although that was not determinative, it was a very powerful factor in favour of not quashing the challenged decision. In terms of disbenefit, delay in proceeding with a development that an authority considered was for the public benefit was necessarily a public disbenefit.
Jenny Wigley (instructed by Richard Buxton Environmental and Public Law) appeared for the claimant; Michael Bedford (instructed by the Solicitor to Teignbridge District Council) appeared for the defendants; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
