Planning document – Area action plan – Designation of area for urban extension – Buffer zone applied to protect stone curlews in special protection area – Whether adoption of plan vitiated by inadequate environmental information regarding stone curlews – Whether plan process meeting requirements of Environmental Assessment of Plans and Programmes Regulations 2004 and Conservation of Habitats and Species Regulations 2010 – Claim dismissed
The claimant owned a large agricultural and equine estate to the south-east of Thetford. In July 2012, the defendant council decided to adopt the Thetford Area Action Plan, in which they confirmed the designation of an area to the north-east of Thetford in their core strategy as a strategic urban extension on which 5,000 houses were to be built. The designated area included land in respect of which the interested party, a property company, was promoting a planning application. The plan was adopted following a public examination before a planning inspector, at which consideration was given to a list of preferred options that took into account the evidence contained in ecology reports compiled using comprehensive bird data acquired under licence from the Royal Society for the Protection of Birds (RSPB). It included a 1,500m buffer zone intended to protect stone curlews in the Breckland special protection area (SPA), which covered the claimant’s estate and other nearby land. The defendants’ approach had the support of the RSPB and of Natural England as a statutory consultee.
The claimant brought proceedings, under section 113 of the Planning and Compulsory Purchase Act 2004, to challenge the adoption of the plan. It contended that: (i) the defendants had failed to carry out an adequate sustainability appraisal and strategic environmental assessment, as required by section 19(5)(b) of the 2004 Act and various provisions of the Environmental Assessment of Plans and Programmes Regulations 2004, since they had not assessed the environmental characteristics at the interested party’s site but had simply assumed that there would be no impact on stone curlews because that site lay beyond the 1,500m buffer; (ii) they had erred in finding that the plan satisfied the requirements of section 19 of the 2004 Act and that it was “sound”, since his conclusions were vitiated by his failure to take account of evidence on stone curlews contained in ecological surveys of the interested party’s land conducted for the interested party from 2007, which the defendants had not disclosed; and (iii) the data in the defendants’ assessment under the Conservation of Habitats and Species Regulations 2010 was incomplete, such that the assessment breached regulation 61 of those regulations.
Held: The claim was dismissed.
(1) The procedure at an independent examination in public was less formal than at a traditional planning inquiry and generally proceeded by the presentation of written documents, with discussion between the parties and the inspector based on those documents: Persimmon Homes (North East) Ltd v Blyth Valley Borough Council [2008] EWHC 1258 (Admin); [2008] PLSCS 152 applied. A decision-maker should give considerable weight to the views of statutory consultees, who in this context were the appropriate nature conservation bodies, and cogent and compelling reasons would be needed to justify a departure from those views: Hart District Council v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] PLSCS 131 applied. The court could review the adequacy of environmental appraisals, assessments, and impact statements on conventional Wednesbury grounds. In doing so, the responsible authority was to be accorded a substantial discretionary area of judgment in relation to compliance with the required information for environmental reports. The court would not examine the fine detail of the contents of such a report but would seek to establish whether there has been substantial compliance with the information required. Deficient environmental statement would not found an application to quash unless the deficiencies were so serious as to mean that there had been an error of law or that the document could not be described as an environmental statement for the purposes of the relevant legislation: R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2003] PLSCS 252 and R (on the application of Edwards) v Environment Agency [2008] UKHL 22; [2008] 16 EG 153 (CS) applied.
In the instant case, the sustainability appraisal contained numerous references to biodiversity issues, impacts on stone curlews, and alternatives. The appraisal was not required to provide a comprehensive assessment of the entire body of evidence about stone curlew activity, notwithstanding the quality of the evidence. The appraisal’s treatment of the position of the interested party’s site and the area to the north-east of Thetford was not such as to prevent from being, in substance, a sustainability appraisal for the purposes of the 2004 Regulations. The defendants’ approach had the strong support of Natural England, a statutory consultee whose views were to be given considerable weight, and of the RSPB, an important and expert interest group. The evidence about the interested party’s site was nowhere near to providing the cogent and compelling reasons needed to depart from those views.
(2) The findings of the inspector were open to him on the material before him; he had been entitled to conclude that the plan satisfied the requirements of section 19 of the 2004 Act and was “sound”. The non-disclosure of the ecology survey work done in relation to the interested party’s site did not provide a public law basis for challenging the inspector’s examination of the plan. The defendants had been entitled to rely on section 12(5)(g) of the 2004 Regulations, concerning information the disclosure of which might adversely affect the protection of the environment to which the information related, as justifying a refusal to disclose that material. Even if they had not been not entitled to withhold that material, its disclosure could have had no impact on the inspector’s conclusions.
(3) The claimant’s argument that the defendants’ assessment under the 2010 Regulations was incomplete, because it excluded data concerning the interested party’s land, was to be rejected for similar reasons to those that applied in the context of the sustainability appraisal.
Timothy Straker QC and Tim Leader (instructed by Greenwoods Solicitors LLP, of Peterborough) appeared for the claimant; John Hobson QC and Ned Helme (instructed by the legal department of Breckland District Council) appeared for the defendants; James Maurici (instructed by Berwin Leighton Paisner LLP) appeared for the interested party.
Sally Dobson, barrister
