Town and country planning – Planning permission – Evidence – Admissibility – Respondent local authority granting planning permission to interested party – Appellant applying for judicial review – High Court dismissing application – Appellant appealing – Whether judge erring in admitting evidence of the respondent’s ecology officer – Whether respondent’s planning committee misled that the habitats regulations assessment (HRA) – Appeal dismissed
On 30 July 2019, the interested party applied to the respondent local authority for planning permission for the erection of a cattle shed and an extension to an existing agricultural building. The site of the proposed development was located within the upper Golden Valley in western Herefordshire in the rural parish of Dorstone. The River Wye was a special area of conservation (SAC) and a site of special scientific interest (SSSI).
The appellant objected to the proposed development on the ground that, as the proposed development contemplated the expansion of livestock farming, it would increase manure production and the spreading of manure on the surrounding fields, which would run off into nearby watercourses, in particular the River Wye.
The respondent’s planning committee considered the application and resolved to grant planning permission in accordance with the recommendation of the planning officers’ report. That report incorporated the evidence of B, the ecology officer at the respondent authority.
The appellant’s claim for judicial review of the grant of permission was dismissed. A witness statement by B was admitted by the judge.
The appellant appealed contending that: (i) the judge’s decisions to admit B’s evidence and then to dismiss the claim relied critically on erroneous and/or irrational interpretations of the evidence and his decision was unjust in admitting B’s evidence and in the reliance he placed on it; and (ii) the judge erred in law in deciding that, prior to granting planning permission, the respondent had complied with regulation 63 of the Conservation of Habitats and Species Regulations 2017 (the Habitats Regulations) transposed article 6(3) of Council Directive 92/43/EEC (the Habitats Directive) into domestic law.
Held: The appeal was dismissed.
(1) The authorities on the admissibility of “ex post facto” evidence in judicial review proceedings established that the court had a discretion whether to admit evidence that had come into existence after the decision under review was made, as a means of elucidating, correcting or adding to the contemporaneous reasons for it. Evidence directly in conflict with the contemporaneous record of the decision making would not generally be admitted. The touchstone was whether the evidence was elucidation not fundamental alteration, confirmation not contradiction: R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197; [2022] RTR 2, R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302; R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; [2013] PLSCS 254, R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43 and Kenyon v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302; [2020] PLSCS 39; [2021] Env LR 8 considered.
(2) Sometimes, even where the evidence was merely explanatory, the court would have to ask itself whether it would be legitimate to admit the explanation given. Circumstances would vary. For example, when the court was dealing with a challenge to a planning inspector’s decision it would have in mind that there was an express statutory duty on the inspector to give reasons for his decision. There was no similar statutory duty on a local planning authority in a case such as the present: Dover District Council v CPRE (Kent) [2017] UKSC 79; [2018] EGLR 1 considered.
In the present case, the judge did not fall into error as a matter of principle. He correctly directed himself as to the relevant principles and the relevant authorities. He reminded himself of the need for caution before admitting B’s evidence. Furthermore, the conclusion to which he came was one which was reasonably open to him. It was helpful in this case to admit B’s evidence in order to elucidate what had been before the planning committee.
(3) The appellant had submitted that the officers’ report misled the planning committee by advising that an habitats regulations assessment was not required. Regulation 63 of the Habitats Regulations required a competent authority to undertake an “appropriate assessment” before giving consent to any project likely to have a significant effect on a European site. It was common ground that the River Wye SAC was such a site. It was also common ground that an appropriate assessment did not take place because it was considered to be unnecessary by the respondent, on the advice of its officers.
The appellant submitted that the test under regulation 63 was whether scientific doubt could be excluded as to the possibility that the proposal could, in combination with other developments, have an adverse effect on the River Wye SAC. He submitted that the officers’ report did not properly advise the planning committee of that test, and the report’s reasoning that, because the site was not itself within the SAC, there were “therefore no likely significant effects” was wrong in law.
However, B’s witness statement made it clear, based on his own expert experience, that there were no relevant effects of the proposed development on the River Wye SAC, whether taken in isolation or in combination with other plans or projects. Further, it was based on the methodology recommended by the expert body in this field, Natural England.
(4) On analysis, the appellant’s real complaint on this appeal was not so much that the planning committee was misled by the officers’ report; nor even that B’s evidence was wrongly admitted by the judge, since it might assist the appellant if the court was able to have regard to B’s evidence. It was rather that B’s advice was wrong. But in order to succeed in that argument the appellant would have had to do more than show that others might take a different view. What had to be shown was that there were public law grounds which would entitle the court to intervene by way of judicial review, in particular that there was a demonstrable error in the reasoning process; or that the conclusion was irrational.
Having regard to the appropriate standard of review, and on the evidence, there were no such public law grounds in this case.
Alex Goodman (instructed by Leigh Day LLP) appeared for the appellant; Matthew Henderson (instructed by Herefordshire Council) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
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