Smyth v Secretary of State for Communities and Local Government

Neutral Citation Number: [2013] EWHC

3844 (Admin)

IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT

Case

No: C0/8108/2012

Royal Courts

of Justice

Strand, London, WC2A

2LL

Date:09/12/2013

…

Before:

MRS

JUSTICE PATTERSON Between:

Claimant

DIANNE SMYTH

-and-

Defendant

THE

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

-and-

Interested

Parties

(1) TEIGNBRIDGE DISTRICT COUNCIL

(2)

BELLWAY HOMES LIMITED (3) ELIZABETH ARCHER ARTHUR, ANGELA LUCIE BAKER-MERCADAL & MS CAROL ANN LAND

Gregory Jones QC and David Graham (instructed by Leigh Day) for the Claimant

James Maurici QC (instructed

by The Treasury Solicitor) for the

Rhodri Price Lewis QC ( instructed by Ashfords) for the Third Interested Parties

Hearing dates

:12TH, 13TH AND 14TH NOVEMBER 2013

Approved Judgment

Mrs Justice Patterson

Introduction

1. This is an application under s.288 of the Town

and Country Planning Act 1990 (“TCPA”) by Dianne Smyth on behalf of Get Involved Exminster (“GIE”), an unincorporated association of Exminster residents, who objected to an application for planning permission for the construction of 65 dwellings with associated highways and parking at Sentrys Farm, Exminster, Devon ( ”the site”). GIE was formed to oppose the proposals for development at Sentrys Farm.

The planning application was made by Bellway Homes Limited (“Bellway”), the second interested party, to Teignbridge District Council, (”the LPA”), the first interested party. The planning application was accompanied by a suite of documents including an ecological assessment.

Bellway had an option to purchase the land which is owned by the third interested parties.

4. The application site is described in the appeal form

as being 1.73 hectares. It is undeveloped agricultural land on the southern edge of Exminster.

The village of Exminster is close to an area of high ecological interest. The Exe estuary is designated under Article 4 of the Birds Directive as a special protection area (SPA). It is also a Ramsar site. It supports overwintering populations of species, in particular, the avocet and the Slavonian grebe, of which it accommodates 28% and

5% respectively of the wintering population in Great Britain. The SPA was classified also under Article 4(2) of the Birds Directive for regularly supporting various migratory species over winter, in particular, the dark bellied Brent geese, dunlins, oystercatchers, black tailed godwits and grey plovers. The closest part of the SPA to the site is about some 350m or so away and known as Exminster Marshes.

6. Within the SPA and on the side of the estuary closest to the site is an area designated as a special area of conservation (“SAC”) under the Habitats Directive known as Dawlish Warren. That contains various Annex I habitat types such as shifting dunes with European marren grass and fixed dunes with herbaceous vegetation.

It supports also various Annex II plant species.

7. Both sites are classified as Sites of Special Scientifi

c Interest under the Wildlife and

Countryside Act 1981.

8. There was some pre application discussion between Bellway and the LPA during

2010. The planning application was finally submitted on 141

February 2011.

It was

taken to committee on l11

July 2011 accompanied by a full report which

recommended that approval be granted. The committee, as they were entitled to, refused planning permission, and in a decision notice dated 21

81 July 2011 gave reasons for refusal. They related, firstly, to the fact that the proposal was contrary to policy because it was residential development in the countryside, secondly, to the fact that the proposal was on the best and versatile agricultural land and, thirdly, to the issue of prematurity pending the adoption of a core strategy which would determine the appropriate level of growth for Exminster.

9. The refusal was appealed by Bellway in September 2011. GIE applied to become, and did become, a rule 6 party to the appeal. The appeal was held by way of public

inquiry which opened on

3e1 January 2012. GIE were present and were represented

by a planning consultant, Mr Hopkins. The claimant was called as a witness. The

following day during the cross examination by

Mr Hopkins of Bellway’s planning

witness the Inspector thought it appropriate, given the nature of the questions that were being asked, to adjourn the inquiry and ask Bellway to instruct an ecologist to deal with detailed ecological matters that were being raised by GIE.

10. The inquiry resumed on 2nd March 2012 and concluded 3 days later. A decision letter

was issued on 201

June 2012 which allowed the appeal and granted planning

permission subject to conditions and a S106 unilateral undertaking. Grounds of Challenge

11.

The grounds of challenge argued before the court are as follows:

i) Was the Secretary of State’s decision to grant planning permission without having carried out an Environmental Impact Assessment (EIA) of the development lawful? (the EIA issue)

ii) Was the Inspector properly and lawfully able to conclude that there was no real possibility that the development would have an appreciable adverse effect on the integrity of the nearby European protected sites for wildlife? (the Habitats Issue);

iii) Did the Inspector err in relying upon a unilateral planning obligation under S106 ofthe TCPA to pay a “conservation contribution” calculated using a (one size fits all) formula? (the CIL issue)

iv) Did the Inspector properly construe and apply the policies in the statutory

Development Plan and National Planning Policy Framework (the Policy Issue)

v) Did the

Inspector give adequate reasons for his decision?

The Decision Letter

12.

The decision letter was issued on the 20th June 2012. The Inspector, Mr Wilde, C. Eng

M.I.C.E, identified the main issues in paragraph 2 as being

“(a) Whether or not there are sufficient material considerations in favour of the development so as to outweigh the provisions of the Development Plan which seek to strictly

control development in the open countryside, and whether or not Exminster is an appropriate location for the proposed development.

(b) Whether or not the need for the development outweighs any impact resulting from the loss of the best and most versatile agricultural land.

13. The Inspector dealt first with development in the countryside. The Inspector noted that in terms of the Development Plan (the Devon Structure Plan and Teignbridge Local Plan) that the development was in the countryside and contrary to various policies which sought to strictly control development in such a location (paragraph 3).

. He then referred to the National Planning Policy Framework (NPPF) and its advice (in paragraph 47) that local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide 5 years worth of housing. Usually there should be an additional buffer of 5% but if a local planning authority had a persistent record of under delivery of housing there should be a buffer of 20% to provide a realistic prospect of achieving planned housing supply. He noted that both the main parties were in agreement that there was not a 5 year housing supply in Teignbridge. The figures provided a range of housing land supply of between 1.9 years and 3.5 years. Using structure plan figures there was a 2.4 year housing land supply.

15. The Inspector then referred to alternative calculations produced by the claimant which showed that there was a 4.97 year housing land supply. He observed that the supply figure provided had not been scrutinised for deliverability and, therefore

, he did not accept it. (paragraph 9)

. He concluded on this topic in paragraph 12 as follows:

“It

is evident from the figures above that whichever base figures are used that the Council do not have anything approaching a five year housing supply. From the figures supplied to me and agreed by both main parties it is also evident that the Council have failed to achieve the annual average requirement every year since 2001, thereby accruing a significant shortfall. It is also the case that there have been no new Development Plan housing allocations made since 1996.It follows that the Council’s policies in respect of housing supply should not be considered up to date.“

. The Inspector moved on to consider whether the appeal site was an appropriate location. He concluded that with the range of facilities within a 10 minute walk of the appeal site and the availability of regular bus services and cycle routes to Exeter and Marsh Barton that the site was sustainable in transport terms. He noted that in the

2009 Strategic Housing Land Availability Assessment the appeal site fell within a broad area of search where future development may contribute towards the creation of sustainable mixed communities. Further, the Inspector concluded that the proposed development would not be significantly harmful to the character and appearance of the area. (paragraphs 13 to 16)

18. The Inspector went on to consider the use of the best and most versatile (BMV) agricultural land. He noted that the policies in the Local Plan and the Structure Plan were to permit development on BMV only where there was a strong case which overrode the need to protect such land. He observed that the Development Plan policy was more rigorous than other relevant policies contained within the NPPF. He concluded that he was not persuaded that the proposed development could be considered to be significant in terms of the amount of BMV that would be taken. Furthermore, given his findings regarding housing supply it was evident that a substantial need existed for housing within the district. He indicated that he would return to the issue in the context of his overall conclusions. (paragraphs 18 and 19)

19. The Inspector considered and rejected the issue of prematurity as a reason for refusal

(paragraph 24).

20. He then dealt at some length with the issue of ecology. Given the significance that issue has assumed in the current proceedings it is necessary to set out

the relevant extract from the decision letter.

“25.

The appeal site lies in reasonably close proximity to the Exe Estuary Special Protection Area (SPA) and RAMSAR site and somewhat further away from the Dawlish Warren Special Area of Conservation (SAC). The Council have previous!y undertaken an initial screening assessment in line with the requirements of the Conservation of Habitats and Species Regulations 2010 (HSR) into whether the proposed development would be likely to result in a significant effect on this site. They concluded from this initial assessment that an Appropriate Assessment (AA) was necessary and consequently undertook such an assessment. The result of the AA was that the Council concluded that the proposed development would have no significant effect on the SPA/RAMSAR site or the SAC.

26.

In an email dated 29 June 2011 Natural England confirmed that they agreed with the conclusions of this AA. In a Secretary of State decision regarding Land at Dilley Lane, Hartley Witney, it is made clear that the Secretary of State continues to give great weight to the views of NE as the appropriate nature conservation body in relation to the application of the Conservation (Natural Habitats &c) Regulations 1994 and consequently I give considerable weight to their conclusion relating to the Council’s AA. Notwithstanding this however, it falls to me as the ‘Competent Authority’ to determine whether the proposed development complies with the HSR.

27.

The Conservation Objectives for the Exe Estuary SPA are to maintain the following habitats and geological features in favourable condition with particular reference to any dependent component special interest features for which the land is designated. The habitats listed are littoral sediment, supralittoral sediment, fen, marsh and swamp and neutral grassland

and the geological features are coastal cliffs and foreshore. For Dawlish Warren SAC the Conservation Objectives are similar with the habitat types being supra-littoral sediment and littoral sediment, and the geological feature being active process geomorphologic.

28.

The screening assessment undertaken by the Council identified disturbance of bird populations, physical damage to the habitats and invertebrate communities by recreational users and pollution from discharges of surface water and drains as the potential hazards to the Exe Estuary SPA and Dawlish Warren SAC. They noted that recreational use was already causing significant disturbance to birds and also physical damage to habitats and invertebrate communities. I note however that in the Exe Estuary SSSI condition assessment undertaken by NE there is no mention of recreational use causing disturbance and damage or having an adverse effect on qualifying bird species. The Council also identified that any impacts from the proposed development would be part of a future in-combination effect of about 15000 houses in Teignbridge and a further 28000 in Exeter and East Devon. From this information the Council concluded that there would be a Likely Significant Effect.

29. Consequently an Appropriate Assessment (AA) was undertaken which identified that the proposed public open space on the site would be of too small an area to fully mitigate the impact of the proposed development.

In the absence of a robust mitigation package specific to the Exe Estuary and Dawlish Warren, the Council have accepted advice from NE that a Joint futerim Approach to securing recreation mitigation

{JIA) would be suitable. Such an approach has been used for the Thames Basin Heaths and Dorset Heathlands Special Protection Areas and was utilised by the Council for a residential development proposal at Secmaton Lane, Dawlish. This approach to securing recreational mitigation is operated jointly with Exeter City Council and East Devon District Council and was adopted in November 2011. The outcome of this approach is that a contribution would be required from residential development, based on the likely number of residents, to be spent on a variety of visitor management measures, on monitoring of the impact of visitors, and towards the provision of a major recreational site to attract people away from the SP

NSAC.

30. During the Inquiry my attention was drawn to an interim report (IR) produced by Footprint Ecology. This report related to strategic planning and impacts from recreation on the Exe Estuary SPA and the Dawlish Warren SAC. The IR indicated that there is a clear relationship between the distance people

live from the estuary and how often people visit, and

GIE pointed out that the IR suggests that there may be a need for restrictions to be placed on development in close proximity to the most sensitive parts of the European sites. Conversely, the IR also states that proposed options for growth in very close proximity need to be carefully checked to ensure that adequa

te and appropriate measures can be implemented to prevent an increase in recreational pressure causing further harm to European sites. To my mind that is the very purpose of considering the proposed development against the requirements of the HSR. I also note that the sensitive habitats (intertidal, shore and open water) within the SPA and the SAC are at least

2.5km to 3km from the appeal site

31. The IR also concludes that in terms of visitors to the Exe, alternative sites and green infrastructure are not likely to be effective alone

. However, it goes on to say that such measures may be effective if combined with on-site management measures that may serve to deter visitors, and gives an example of such a measure as dog control orders in certain areas.

32.

This is very much the approach taken by the JIA, and as well as the provision of a strategic suitable alternative natural green space (SANGS), I was made aware of a list of schemes that would form part of this approach, including enforcement of exclusion zones, provision of a patrol boat, dog control orders and enhanced signage. Overall, notwithstanding that the Exe Estuary SPA and the Dawlish Warren SAC are estuarine habitats as opposed to heathlands, I consider the JIA and its outcomes to be an acceptable way of achieving the required mitigation.

33.

In arriving at this conclusion I am aware that the JIA is an interim measure that tends towards a ‘one size fits all approach’. I consider, however, particularly in view of the housing shortage in the district, that it would be inappropriate for planning permission for residential development to be consistently refused until such time as a final mitigation package is produced.

. The AA undertaken by the Council further noted that the extent to which the on-site public open space would attract every day recreational use away from the SPA and SAC would be dependent on its quality and continuing management, and recommended a variety of landscape features and the division of the area into several small visually contained areas. The AA also noted that full details of the sustainable drainage scheme (SUDS) would be needed before the commencement of development. If I ultimately conclude in favour of the appellants, then I consider that it is perfectly acceptable from a legal and planning perspective for the details of the SUDS and

the landscape features to be approved through a suitable planning condition. This would enable the Council to ensure that no harmful discharges would occur to the SPA and SAC and to have control over the design of the public open space.

. Evidence produced by the appellants makes the point that the SPA and SAC are not designated on account of breeding birds, but on account of their passage and overwintering bird populations. The appellants also point to the fact that the Exminster Marshes Nature Reserve is accessible from the appeal site. This reserve has been designed to alleviate pressure from visitors on the SPA site. There are also large expanses of accessible forest about 8km from the appeal site, which may well be preferable for dog walkers. The appellants also point to the fact that much of the SPA is not well suited to public access, comprising mud flats and saltmarsh.

36 Rule 6 parties considered that as the appeal site is within

400m of a European site then mitigation is not possible. However, from the evidence that is available to me it would seem that this approach stems from the delivery plan and guidance associated with the Thames Basin Heaths, and is not strictly applicable to the case before me. The types of habitats involved here differ from a heath, as do the types of species involved and the accessibility, and consequently I am not persuaded that a 400m rule applies.

. It is acknowledged by both main parties that the onsite public open space (POS) will be smaller than that required to fully mitigate the impact on the SPA and SAC, and will to an extent be compromised by the provision of the SUDS. However, this POS is over and above the primary mitigation measure, the contributions under the UU, and this is not therefore an issue that can be afforded significant weight.

38. Overall, taking into consideration the conservation objectives of the SPA and the SAC, and the proposed mitigation measures and other factors that I have outlined above, I conclude that the proposed development, even when combined with other development, would not be likely to give rise to any

significant effects on either the SPA or the SAC. There would therefore be no conflict with the requirements of paragraph 118 of the Framework. This makes clear, amongst other things, that if significant harm resulting from a development cannot be avoided, adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused.

39. My attention has been drawn to paragraph 119 of the Framework, which makes clear that the presumption in favour of sustainable development

does not apply where development

requiring appropriate assessment under the Birds or Habitats Directive is being considered, planned or determined. Whilst an Appropriate Assessment was undertaken by the Council at application stage, in light of my findings above, I have found no necessity for repeating this process. Consequently, the presumption in favour of sustainable development applies to this detennination.

40. The appeal site falls within a Cirl Bunting enhancement zone and a comprehensive survey was undertaken by the appellants which found no trace of these birds. However, I was made aware of anecdotal evidence from third parties that Cirl Buntings had been seen on the site. Whilst this may be the case, in light of the survey and the Council’s suggestion of a condition that would enhance the proposed scheme’s open space to encourage these birds, I am not persuaded that such a sighting is of such significance as to requi

re dismissal of the scheme.”

21.

The Inspector then proceeded to deal with contributions that were offered through an executed unilateral undertaking in paragraphs 41to 44. I deal with those paragraphs in the context of ground three below – the CIL issue.

22.

The Inspector went on to conduct a balancing exercise. He said as follows: “45. I have identified that there is a housing land supply of

considerably less than five years, that the Council have failed to

achieve the annual average requirement every year since 2001, thereby accruing a significant shortfall, and that there have been no housing allocations since 1996. The proposed development would help to overcome this shortfall, and in view of my comments at paragraph 10 above, I also consider that the appellants have every intention of completin

g the development in good time.

46. I have also found that the appeal site is in an appropriate location in terms of sustainability and, with appropriate mitigation, would be unlikely to have any significant effect on the Exe Estuary SPNRAMSAR site or the Dawlish Warren SAC

. I give significant weight to these matters.

47. Against this the proposed development would be in conflict with policy H7 of the LP and with policy ST5 of the SP, and I give weight to this conflict. I also give some weight in favour of the Council to the question of prematurity, particularly in respect of the impact of the development on Exminster. However, any such weight has to be tempered in light of the current stage of the emerging CS, and the fact that it may well be subject to further consultation or indeed could be deemed to be unsound. The development would utilise BMV,

and I give some weight to this, and the consequent conflict with SP policy C014 and LP policy Pl, although that weight is limited by the fact that those policies are somewhat out of step with paragraph 112 of the Framework, and that

a substantial need for housing has been identified.

48. On balance, I consider that the factors

in favour of allowing the appeal, particularly those concerning the significant shortfall of housing in the District, outweigh those in favour of its dismissal.”

. Having considered the issue of conditions the Inspector allowed the appeal.

The general legal framework

4. Section 70(2) of the TCPA provides that in dealing with a planning application: ” The authority shall have regard to-

a) The provisions of the development plan, so far as material to the application…

b) Any other material considerations.”

25.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that where regard must be had to the development plan, a determination must be made in accordance with the development plan unless material considerations indicate otherwise.

6. There is a right of appeal to the Secretary of State pursuant to section 78(1) of the TCPA. On an appeal the Secretary of State has powers pursuant to section 79(1) of the TCPA to consider the application as if it had been made for him in the first instance.

27.

A decision letter ought to be construed in a reasonably flexible manner: Seddon Properties v SSE [1981] 42 P&CR 26 (at 28). Because the decision letter “is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph.”

. The weight to be attached to any material consideration and to matters of planning judgment are within the exclusive jurisdiction of the decision maker and not the court: Tesco v Secretary of State for the Environment [1995] 1 “M-R 759 at page 780.

. The exercise at planning judgment can only be interfered with by the court if it is Wednesbury unreasonable. As Sullivan J (as he then was) in Newsmith v SSETR [2001] EWHCAdmin 74 said:

“6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a

challenge under section

288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.”

7. In any case, where an expert tribunal is the fact finding body the threshold of

Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8 … Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task.”

30.

In South Somerset District Council v The Secretary of State for the Environment
{1993] 66 P
& CR 83, Hoffman U said,

“The Inspector is not writing an examination paper on current and draft development plans

. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the Inspector’s reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the Inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the Inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy.”

31.

Tesco Stores v Dundee City Council [2012] P.T.S.R. 983 dealt with the approach to planning policy as follows:

“18

…. policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad

statements of policy, many of which

may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780, per Lord Hoffmann. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

32.

The relevant principles on the adequacy of reasons were summarised by Lord Brown in South Bucks District Council and another v Porter (No 2) {2004] 1 W.L.R. 1953:

“36. The reasons for a decision must be intelligible and they must be adequate

. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case rnay be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

33.

I tum now to deal with the individual grounds of challenge. The Claimant raised many detailed points, some of which overlap, both in oral submissions and in her skeleton argument, which I have grouped under the relevant grounds and deal with below.

Ground One: The EIA Issue

Legal

Framework

34.

It is common ground that the relevant regulations are the Town and Country Planning (Environmental Impact) (England and Wales) Regulations 1999 (the EIA regs) which transpose Council Directive 85/337/EEC; Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and provide a system of assessments of the impacts of development projects. That has been replaced by a consolidated version of the directive known as Directive 2011/92/EU but it came into force in February 2012 after the Bellway application was submitted. Article 2 of the Directive, where relevant, reads:

“Member states shall adopt

all measures necessary to ensure that before the full consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects.“

. These projects are defined in Article 4. Article 4 reads:

“1.

Subject to Article 2(3), projects listed in annex 1 shall be made subject to an assessment in accordance with Articles 5 to

10.

2. Subject to Article 2(3) for projects listed

in annex 2, the members states shall determine through:

a) a case by case examination, or

b) thresholds or criteria set by the member state

c) whether the projects shall be made

are subject to an assessment in accordance with Articles 5-10.”

6. In determining whether a project should be subjected to an assessment, Article 4(3) requires the list of criteria in annex III to be taken into account. So far as is material, these included:

“1

I CHARACTERISTICS OF PROJECTS

The characteristics of projects must be considered having regard, in particular, to:

(a) the size of the project;

(b) the cumulation with other projects; (c) the use of natural resources;

(d) the production of waste; (e) pollution and nuisances;

(t)

the risk of accidents, having regard rn particular to substances or technologies used.

LOCATION OF PROJECTS

The environmental sensitivity of geographical areas likely to be affected by projects must be considered, having

regard, in particular, to:

the existing land use,

the relative abundance, quality and regenerative capacity of natural resources

in the area,

the absorption capacity

of the natural environment, paying particular attention to the following areas:

(a) wetlands;

(b)

coastal zones;

(d) nature reserves and parks;

(e) areas classified or protected under Member States’ legislation; special protection areas designated by Member States pursuant to Directive 709

/409/ and 92/43/EEC;

(f) areas in which the environmental quality standards laid down in Union legislation have already been exceeded;

(g) densely populated areas;.

CHARACfERISTICS OF THE POTENTIAL IMPACT

The potential significant effects of projects must be considered in relation to criteria set out in points 1 and 2, and having regard in particular to:

the extent of the impact (geographical area and

size of the affected population);

the transfrontier nature of the impact;

the magnitude and complexity of the impact;

the probability of the impact;

the duration, frequency and reversibility of the impact.”

37.

The EIA Regs transpose the original Directive. Although replaced by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 they only apply to planning applications lodged on or after 24th August 2011. As a result the EIA Regs continue to apply to the Bellway application.

. Regulation 3 prohibits the grant of planning permission or subsequent consent without consideration of environmental information.

39.

The relevant regulations for the instant case are regulations 4, 5 and 9. Regulation 4 provides general provisions in relation to screening:

“General provisions relating to screening

4. (1)

Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

(2) The events referred to in paragraph (1)

are-

(a)the submission by the applicant or appellant

in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or

(b)

the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

(6) W

here-

(a)

a local planning authority adopt a screening opinion;or

(b)

the Secretary of State makes a screening direction under these Regulations;

to the effect that development is EIA development-

(i) that opinion or direction shall be accompanied by a

written statement giving clearly and precisely the

full

reasons for that conclusion; and

(ii) the authority or the Secretary of State, as the

case may be, shall send a copy of the opinion or direction and a copy of the written statement required by subparagraph (i) to the person who proposes to carry out, or who has carried out, the development in question.”

40.

Regulation 5 deals with requests for screening opinions of the local authority. That reads, where relevant:

“5. (1) A

person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion. “

(2) A

request for a screening opinion shall be accompanied by-

(a) a plan sufficient to identify the land;

(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and

(3) An authority receiving a request for a screening opinion shallJ if they consider that they have not been provided with sufficient information to adopt an opinion, notify in writing the person making the request of the points on which they require additional information

(4) An authority shall adopt a screening opinion within three weeks beginning

with the date of receipt of a request made pursuant to paragraph (1) or such longer period as may be agreed in writing with the person making the request.”

41.

An appeal to the defendant without an environmental statement is governed by

Regulation 9 which, where relevant, provides,

(1) Where on consideration of an appeal under section 78 ( right to appeal against planning decisions and failure to take such decisions ) it appears to the Secretary of State –

(a) the relevant application is a Schedule 1 application or

Schedule 2 application; and

(b) the

development in question-

(i) has not been subject to a screening opinion or screening direction; or

(ii) in the case of a subsequent application, was the subject of a screening opinion or direction before planning permission was granted to the effect that it is not EIA development; and

(c) the relevant application is not accompanied by a statement referred to by the appellant as an environment statement for the purposes of these Regulations, paragraphs (3) and (4) of regulation 6 shall apply as if the appeal was a request made by the appellant pursuant to regulation

5 (6).

(2) Wh

ere an Inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the Inspector that it may be such an application, the Inspector shall refer that question to the Secretary of State and shall not determine the appeal except by refusing planning permission or subsequent consent before he receives a screening direction.“

42.

It is agreed that the residential development proposed by Bellway could come within the description of an urban development project under paragraph lO(b) of Schedule 2 to the EIA Regs with a site area in excess of 0.5 hectare. It needed to be screened, therefore, to ascertain whether it was EIA development.

Factual Background

43. On the 3rd March 2010 Bellway wrote to the LPA. They requested

a screening opinion. The letter accepted that the site fell within the terms of schedule 2 development and expressed a view that an EIA was not required as significant environmental impacts were not likely to arise. The letter indicated that the proposal was for up to 65 new dwellings with car parking, open space and landscaping. It referred to the EIA Regs and the appropriate Circular, 02/99. It described a site with a total area of 5.3 hectares of which only about 1.65 hectares was developable. It said that the land could provide up to 65 dwellings which was less than the threshold referred to in paragraph A19 of the Circular which provided indicative thresholds of 5 hectares and 1000 dwellings. The letter continued,

“With regard to potential impact, the site does not lie within any designated area of landscape and ecological sensitivity

but does lie close to such areas…”

44. The letter said that the application would be submitted accompanied by a suite of supporting reports including an ecological assessment. Attached to the letter was a plan which identified the site in respect of which the screening opinion was sought. The site shown was the site of the eventual planning application for 65 houses.

45. On the 25th March 2010 the LPA replied as follows,

“I refer to your request for a screening opinion dated the

3rd

March 2010.

I have considered the information in your letter, the requirements of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and the advice contained in circular 0

2/99. I have concluded that the proposal would not constitute EIA development for the following reasons:-

The proposal comprises schedule 2 development where an EIA is not always necessary,

The site does not lie within a sensitive area,

The proposal falls well below the threshold of 1,000 dwellings identified at paragraph A19 of circular 02/99,

The proposal would not be likely to lead to significant effects on the environment.”

46. On the 13th February 2011 the claimant contacted the LPA after an inspection of the planning file on the Bellway development. By email dated 14th February she was told that the EIA screening opinion would be on the planning application file as soon

as the planning application had been validated.

47. The claimant contacted her MP. He wrote to the LPA on the 22nd March 2011. That letter is not before the court. What is before the court is the reply from the LPA dated h April 2011 to the MPs letter. That sets out that there had been a request for a screening opinion which had been replied to and which contained the reasons for the LPA reaching its decision.It attached the request and response for the information of the MP. By the end of April 2011 the claimant had a copy of the screening opinion. No further communication relating to an EIA was received by the LPA from the

claimant directly or indirect}y.

48. In September 2011 when the appeal was lodged with the Planning Inspectorate (PINS), in accordance with the usual practice, further consideration was given to whether there was a need for an EIA

. linda Rossiter who is an executive officer in the environmental services team at PINS has filed a witness statement that says that she

screened the Bellway application on the 201

September 2011. The purpose of that

exercise is to establish by reference to a checklist whether an EIA is required. Once that exercise has been completed the procedure is to check the appeal documents to see whether a screening exercise has been carried out by the LPA and whether a screening opinion has been issued. If it has, PINS consider whether they agree with that conclusion.

If the LPA has issued a negative screening opinion and PINS agree no further or formal screening opinion is required. That was the position here. If no screening opinion has been issued or if PINS disagree with the LPA’s assessment a formal screening direction is issued by PINS with the authority of the defendant. Ms Rossiter exhibited the checklist which was followed to her witness statement.

. GIE filed their statement of case on October 3151 2011 for the forthcoming planning inquiry. No point was taken about the requirement for an EIA.

50. At the public inquiry GIE were represented by Mr Charles Hopkins

. He is in practice as a planning and environmental consultant. He is also a qualified barrister, called to the bar in 1991and a solicitor, becoming a solicitor of the Supreme Court in 1995 and practising until2010.He has filed a witness statement which says, at paragraph 6,

“I acknowledge that I did not expressly argue that an

EIA should be carried out at the inquiry. However GIE’s case was very much that the development would have significant impacts on the human biological and physical environment, particularly on the SPA. I refer to Mrs Smyth’s proof of evidence, my

written submission of

ih February 2012 and my closing

submissions.

The case that I made was that an “appropriate

sessment” needed to be carried out by the Inspector as the “competent authority.” I considered at the time that if an appropriate assessment was required then an EIA would be required. “

ubmissions

51. The claimant refined her submissions on this ground so that her fmal contention was that there were 2 questions for the Court to decide:-

(i) Should the EIA procedure have been required from the outset?

(ii) Was the Inspector under a duty to refer the question of EIA to the defendant for a screening opinion?

52.

The claimant’s primary submission is that a negative screening opinion has no legal effect and formally determines nothing. In support she relied upon the case of Gregory v Welsh Ministers [2011)) Env LR 19. She submits that means that the question of whether the development required an EIA remained open when the appeal process was on going. Even if the issue was not raised expressly the Inspector should have been on notice because of concerns raised by GIE. It was then incumbent on him to raise the matter of his own motion. Reliance was placed upon Petition of Sustainable Shetland [2013] CSOH 158; 2013 S.L.T.1173 paragraph 235.

53.

The claimant submits that the role of the court on such a challenge is not limited to Wednesbury review. Such an approach does not accord with the purpose of the EIA Directive to ensure that all projects requiring EIA are subject to that procedure. She accepted that there had been Court of Appeal judgements to the contrary such as R(Jones) v Mansfield DC [2003] EWCA Civ 1408 but they had to be distinguished when they conflicted with consistent case law from CJEU such as Commission v UK [2007] Env LR 1 where a merits review standard and not a rationality review was applied.

. Although the case of Commission v UK (supra) had been distinguished in Bowen West v SSCLG [2012] Env. L.R.22 on the ground that a merits review was not required by the national courts that was obiter only. The case of Loader v SSCLG [2013] P.T.S.R

40+ suggesting also that a Wednesbury review was required was based upon a

concession made by Counsel so that comments there, too, were obiter.

. Even if the test is one of Wednesbury review it is submitted that the screening opinion was unreasonable in those terms.It related to a different outline development and was based on insufficient information to be able to assess whether there was likely to be a significant effect on the environment. Such as the exercise was it did not relate to the development in question. As such it could not determine whether the development was EIA development. Further, it was perverse to find that there was unlikely to be any significant environmental effect of the whole project in 2010 but then to find in

2011, as Ms Rush did, that in terms of ecological matters alone there was likely to be a significant effect.

56. In 2010 the reasons given in the screening opinion were inadequate to explain why the LPA found that there was no likely significant effect. Although there was no duty to give reasons for a negative screening opinion

if a public authority gave reasons then they had to be clear and meet the appropriate public law test.

. In the circumstances, it was at least arguable that the development was EIA

development and so it was necessary for the Inspector to refer the matter to the

defendant. The purpose of regulation 9(2) is to

“catch” such appeals and to ensure that the matter is resolved at that appeal stage without the matter having to be determined after the inquiry in court.

8. The EIA Regs must be interpreted in accordance with the Mar/easing principle to give effect to the Directive. The Directive at Article 4(2) requires member states to detennine “whether the project shall be made subject to an assessment and to publish that decision”. In support of his submission the claimant relies on the case of Mellor C-75/08 [2009] E.C.R I-3799 at paragraph 59 and the general duties of transparency and public participation in environmental matters under the Aarhus Convention at Article 6(2) as well as duties under the Environmental Information Directive. That combination has to mean that the state has to issue a formal, legally effective answer and not a mere opinion “of no legal effect”, nor an internal informal check.

59. Further, the internal exercise carried out by Ms Rossiter was not a formal decision and failed to take many factors into account.

In particular, there was no consideration of the effects on bird species protected under the Birds and Habitats Directive because it was thought to be protected by other legislation.

60. Harm to European protected species and sites was

in principle a significant effect on the environment requiring an EIA. Reliance was placed on the case of Champion v North Norfolk District Council and another (2013) EWHC 1065.

61. The claimant submits also that the decision made by Mrs Rossiter was unlawful. The first argument is that there was no public awareness or publication of the internal screening

.That was contrary to Article 6 of the Aarhus Convention.It was impossible for the claimant or anyone else to exercise a right in respect of the reasons for a decision that she did not know had been taken.

62. In so far as the reasoning disclosed by the checklist used by Ms Rossitor was concerned, many criticisms in detail are made. In particular, it is said that

there was no consideration of the effects on bird species protected under the Birds and Habitats Directive because it was thought that they were protected by other legislation. Further, when the question was asked, are there any other factors which should be considered such as consequential development which could lead to environmental effects or the potential for cumulative impacts with other existing or planned activities in the locality the answer given was no. That was clearly wrong. So, too, was the conclusion which read,

“Although

the site is not within a sensitive area it is in excess of 0.5 hectares. However the scale of the development is no more than of local importance. Having regard to schedule 3 of the regulations, the development by virtue of its size, location and characteristics is unlikeIy to have a significant effect on the environment.”

3. The defendant submits that to succeed on Ground One the claimant must establish either,

a legal flaw in the LPA’s screening opinion; or

ii.

that the Inspector erred in not referring the question of EIA back to defendant under regulation 9(2).

64. Under the EIA Regs and under EU law there is no duty to give reasons for a negative screening opinion; see regulation 4(6) and

Mellor at paragraphs 56 and 61. The only obligation to give reasons arises if there is subsequently a request. There has not been any such request.

65. The defendant accepts that the LPA in its response to the claimant’s MP says that the screening opinion contains reasons.

If that is so, it should be read in conjunction with the letter requesting the opinion. Further, it is sterile to overly examine the screening opinion when one can look at the substantive decision made in the decision letter. Such an approach is consistent with that of the Court of Appeal in the case of R (Berky) v Newport City Council [2012] 2 CMLR 44.

66. In carrying out its decision making process the LPA was entitled

to take into account mitigation measures in concluding that the proposal was not EIA development: see Catt v Brighton and Hove City Council [2007] Env. L.R.32 at paragraph 34.

67. The fact that the LPA considered that a screening assessment was required for an appropriate assessment does not necessarily mean that an EIA was required also. The fact that the appropriate assessment concluded that there was no significant effect on the environment was compatible with the decision that no EIA was required. Overall, the conclusion in the screening opinion that an EIA was not required was challengeable only on a

Wednesbury basis.

68. Because the matter had not been raised by any of the parties it was for the Inspector to use his own planning judgment as to whether to refer the issue of a screening direction to the defendant. The fact that he was not asked by any of the parties to exercise such a power was not necessarily fatal but would mean that any applicant raising such an issue would face a formidable task. Such a challenge could only succeed if the court was satisfied that any reasonable Inspector would, on the facts before the Inspector in that appeal, have concluded that he/she should exercise that power to refer of his/her own motion, not withstanding the fact that they had not been asked to do so by any party to the appeal.

69. The case of

Gregory needed to be considered on its own facts as it was based upon an express concession made by counsel for the defendant during the course of the case.

70. As to the screening check carried out by PINS that was only relevant to a decision on whether to quash the decision.

It provides powerful further reasons against quashing on any alleged defects in the screening opinion.

Discussion

71. I propose to deal with the arguments in the following order. First, the standard of review that is appropriate for the court to exercise in relation to a screening opinion, second, whether the screening opinion in 2010 was flawed and third, whether the Inspector should have referred the issue to the defendant at the inquiry.

. As the claimant accepts there is ample domestic jurisprudence on the standard of review. In Jones (supra) Dyson U examined the role of the court and said,

“16. It is right to say that Lord Hoffinann did not deal specifically with the role of the cotirt in any challenge to a decision by a local planning authority. But it would be

very surprising if the nature of the court’s reviewing function were to differ according to whether the decision as to whether the application is a Schedule 2 application is made by the local planning authority or the Secretary of State. The question that is left to be determined in the first instance by the local planning authority is the same as the question that is determined by the Secretary of State pursuant to regulation

2(2). I do not consider that the use of the word

“opinion” in regulation 2(2) indicates that there is any difference. The fact that the decision of the local planning authority may be overridden by a formal direction of the Secretary of State does not justify or require a different role for the court in the two cases. Accordingly, I would hold that what Lord Hoffmann said in relation to challenges to decisions by the Secretary of State applies equally to challenges to decisions by local planning authorities.

. Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case. The use of the word “opinion” in regulation 2(2) is, therefore, entirely apt. In my view, that is in itself a sufficient reason for concluding that the role of the court should be limited to one of review on Wednesbury grounds.”

. In the case of R(Loader) v Secretary of State for Communities [2013] PTSR 406 Pill
U
recognised in paragraph 31 that,

“There

is ample authority that the conventional Wednesbury approach applies to the court’s adjudication of issues such as these (Jones, paragraphs 14, 15, 17 and 60 and Bowen-West, paragraph 39). Mr Pereira accepted that, provided the correct test is applied, the court should approach a challenge to the decision on Wednesbury principles.”

74.

I reject the Claimant’s submission that the recorded concession that the Wednesbury approach applied was wrongly made. As Pill U said at paragraph 43 in Loader the criteria to be applied and the judgement to be exercised in carrying out a scoping opinion by the planning authority is focussed on the circumstances of the case. In my judgement, and consistent with Jones, the scoping exercise is one of judgement or opinion and not one of hard edged fact to which there is only one answer. The court does not need to embark on its own merits review in those circumstances. I do not see, therefore, that the conventional domestic approach is inapt.

. Further, that approach is consistent with the requirement set out in Commission v United Kingdom which is that the Court of Justice will intervene only if there is a manifest error of assessment. As Laws Usaid in Bowen West v Secretary of State for Communities and Local Government [2012] EWCA Civ 321 at paragraph 41, “the Court of Justice is of course concerned to see that the law is properly applied in Member States, but in the present context that is achieved by Wednesbury standards.” That was said when dealing with a submission that the law of the European Union required a more intensive judicial scrutiny than Wednesbury when dealing with the scope of an EIA. It would be inconsistent to apply different tests to different stages of the EIA process. There is nothing in European jurisprudence that suggests that should be the case.

76. Second, is the March

2010 screening opinion legally flawed?

77. The letter seeking the screening opinion had a plan attached to it which was sufficient to identify the land which eventually became the planning application site.

It contained also a brief description of the nature of the development in that it expressly stated that no more than 65 houses were contemplated on about 1.65 ha of developable land. It provided some description of the possible effects on the environment. Had the LPA been dissatisfied with the information provided it could have asked for more. It did not. The inference is that the LPA was satisfied that it had sufficient information to determine whether an EIA was going to be required. That was a matter entirely for the discretion of the LPA provided that discretion was exercised reasonably. It had been told that the application site was not within designated areas of landscape and ecological sensitivity but was close to such areas. It cannot be said either that the site or development proposed were not identifiable from the information provided which complied with the Regulation 5 of the EIA Regs.

78. The scoping opinion itself of the 25th March 2010 is terse. As the later letter of 41

April says that the earlier letter contained the LPA reasons for why the development was not EIA development the reasons provided have to comply with public law tests. However, that does not mean that the letter of the

25th of March has to be construed in isolation. It can be read with the request for the screening opinion itself and further information can be requested by third parties to fill in the gaps, if any: see Mellor (paragraph 65) and R (on the application of Berky) v Newport City Council (supra).

79. As Carnwath

U (as he then was) said inBerky,

“

22. I confess to finding this whole discussion somewhat sterile. The issue at this stage is not the validity of the screening opinion as such, but whether a flawed screening opinion led to failure to conduct an EIA, and accordingly undermined the legality of the planning process. The screening letter could and should have been more fully reasoned, and I find it difficult to understand why the opportunity was not taken to fill the gap more clearly in the planning officer’s witness statement. However, I agree with the judge that the only reasonable interpretation is that the officer broadly accepted the reasoning of GVA Grimley’s letter. I am unconvinced that there was any serious doubt about this among those interested.

24.

If there was any doubt about the officers’ views on these points, they would have been dispelled by the very full report which went to committee, and has not been criticised. The concerns revealed by that report were not related to possible environmental effects, but to conflict with retail policies..There is nothing in that report, or in the evidence in this court, to cast doubt on the correctness of the decision that an EIA was not necessary. Nor is there anything to indicate that Mr Berky or his colleagues have been in any way prejudiced by the terseness of the reasoning at the earlier stage.“

80. The Committee Report here was

full and has not been criticised.

81. Further, in coming to its decision the LPA was entitled to have regard to and to take into account mitigation measures

: see R (Loader) (supra) para 43 and R(on the application ofCatt)(supra) para 34.

82.

That feeds into the apparent paradox between the decision on the part of the LPA that no EIA was required but making a later decision that an appropriate assessment was required under the Habitats Directive. The two are different processes undertaken at different times as the planning application progresses. A screening opinion on an EIA is an overall judgement as to whether the development proposed is likely to have any significant environmental effects on the information then known to the lPA. In this case that was before receipt of any documentation that was submitted with the application including the ecological assessment. The appropriate assessment (AA) was considering a more limited question at a later stage in the process, namely, were there likely to be significant effects on the SPA, SAC and SSSis. At the screening for the AA stage Ms Rush considered the situation such that a full AA was required. But, in the event, the AA concluded that, with mitigation, there would be no significant effects. As set out the approach of taking mitigation effects in the AA into account was entirely acceptable: seeR (on the application of Hart DC) v Secretary of State for Communities and Local Government {2008] 2P. & C.R.l6. Despite initially seeming to be contradictory decisions upon proper scrutiny the EIA and the AA decisions are thus entirely compatible with each other.

. When the screening opinion is read with the letter requesting it the reasons given although briefly expressed are adequate so the decision cannot be found to be Wednesbury unreasonable. There was sufficient evidence for the LPA to come to its conclusion.

84.

It follows that the 2010 screening opinion is not legally flawed.

85. Third, was the Inspector required to refer the question of an EIA to the Defendant?

86. Nothing was revealed in the

verification process carried out by PINS that led to the view that the decision on the part of the LPA was flawed. PINS followed their own checklist prior to examining whether the lPA had given a screening opinion and concluded that there was no need for an EIA in the circumstances of this case. The PINS exercise was an internal administrative process. If a contrary view had been reached, namely, that there might be a need for an EIA, then the issue would have been referred to the Defendant for his determination. The PINS process, therefore,

was not a decision that could affect either the prior decision made by the LPA or any subsequent decision made by the Defendant. The absence of publication of the internal screening exercise by PINS was thus of no effect to public participation in environmental decision making as at no stage was it the ultimate decision maker. The public right to be actively involved in the environmental decision making process as it progressed was unaffected by the PINS process. Accordingly, there is no breach or unlawfulness in their procedures.

87.

That moves the chronology on to the position of the Inspector. Regulation 9 (2) of the EIA Regulations makes it clear that if a question arises as to whether the application is an EIA application and it appears that it may be such an application then he shall refer it back to the Defendant. In other words the Inspector would have to consider that the proposed development was likely to cause significant environmental effects and, if so, he would have to refer the application.

88. The Inspector here was never asked to refer the question of an EIA back to the defendant by any party. In the case of

R (on the application of Mageean) v Secretary of State for Communities and Local Government [2011] EWCA Civ 863 Sullivan U considered that position in paragraph 22,

“22. Precisely

because an Inspector has to use his or her own planning judgment on that issue the mere fact that he or she has not been asked by any of the parties to the appeal to exercise the power to refer the matter back to the Secretary of State will not necessarily be fatal to a legal challenge to a failure to exercise the power. However, an applicant under section 288, which is of course concerned with an error of law on the part of the Inspector determining the appeal, will face a formidable task in such a case. A section 288 challenge in those circumstances will succeed only if the court is satisfied that any reasonable Inspector would, on the facts before the Inspector in that appeal, have concluded that they should exercise the power to refer the matter back to the Secretary of State of their own motion, notwithstanding the fact that they had not been asked to do so by any party to the appeal..”

89. In my judgement it cannot be said that any reasonable Inspector on the facts before the Inspector

in the instant appeal would have concluded that he should refer the matter back to the defendant of his own motion. The LPA was satisfied that, with mitigation, there would be no significant environmental effects, GIE was raising no express point on the adequacy of the screening opinion and the internal administrative process at PINS had raised no concerns.

90. As the evidence played out at the full inquiry the Inspector, too, concluded that there was unlikely to be any significant environmental effects. So even reviewing matters at the end of the process there is no basis upon which it could be said that the Inspector erred.

91. The claimant relied on the

Shetland case (supra) and paragraph 238, in particular, in support of the contention that the Inspector ought to have referred the EIA question to the Defendant of his own motion. The Shetland case was a challenge to a wind farm

operating on central Shetland where there were liv

e issues about whimbrel and the Wild Birds Directive which was part of the essential legal framework in which the respondents there were required to determine the case. There was a complete omission in the decision letter of any of the issues under the Wild Birds Directive upon which the judge recorded that she had been addressed over some days. There she held that the responsibility for identifying the correct legal framework lay on the respondent regardless of objections. However, it was plain from objections from Scottish National Heritage that matters relating to the Directive were plainly put in issue. It had become one of the main issues at the hearing. There had, therefore, been an omission of a highly material consideration which meant that the decision was flawed.

. That is very different to here where, as set out, no party was raising EIA issues.

Ecological issues were raised in some detail during the inquiry and caused an

adjournment so that expert evidence could be called. Their impact, and whether that could be resolved, were highly material considerations and were considered in some detail in the decision letter and within the correct legal framework. I did not, therefore, find

the Shetland case of assistance in the current circumstances.

. The case of Gregory v Welsh Ministers [2013] Env L.R.19 relied on by the claimants does not assist much either. There, the issue was whether Regulation 9(2) precluded the Inspector from determining the appeal until he had obtained a screening direction from the defendant as to whether an EIA was required. There had been a purported screening opinion by the local planning authority to the effect that no EIA was required. Whether an EIA was required was one of the main issues in the case. The Inspector addressed the issue of whether an EIA was required in the appeal and decided that one was not. It was held that the Inspector had impermissibly usurped the function of the defendant in performing the duties arising under the EIA Directive. The earlier local authority screening opinion was not conclusive. Again, that is very different to the instant case where the EIA issue was not raised as a main issue.

94. The final

case upon which the claimant relies under this ground is that of R(Champion) v North Norfolk District Council [2013] EWHC 106. In that case the challenge was to a decision of a planning committee to grant planning permission for two silos and a lorry park about 500 metres from a SSSI and a SAC. No EIA or AA was carried out. It was held that the decision not to have an AA or EIA suggested that there was no relevant risk. It was then inconsistent to impose conditions for testing water quality to ensure that pollutants did not enter the river conditions could only be imposed where they were necessary the response of the LPA showed that they must have thought there was a risk. The inconsistency meant that the permission had to be quashed. The LPA could not adopt both positions at once.

. That is unlike that position here where the LPA conducted an AA and determined that there would be no likely significant effect provided mitigation measures were adopted. The conditions imposed on the planning permission were entirely consistent with the mitigation measures contemplated in the AA. The Inspector concluded that there was no likely significant environmental effect, subject to the imposition of conditions, after receiving all the evidence. The conditions could be imposed with safety, given the involvement and approval of Natural England (“NE”), the provenance of the Joint Interim Approach (“JIA”) and having heard the evidence and cross examination of Mr Goodwin, the expert ecologist who gave evidence at the

inquiry on behalf of the appellant. The key was whether the mitigation measures proposed were going to operate within acceptable parameters.

As set out, it was the Inspector’s planning judgement that they were and he had a reasonable basis on which to conclude that was the position unlike the situation in Champion.

96.

It follows that failure to conduct an EIA did not undermine the legality of the planning process. Ground one fails.

Ground Two:Appropriate Assessment

Legal Framework

97. Directive 2009/147/EC of the Parliament and LPA (the Birds Directive) provides

Article 1 that it:

“…relates to the conservation of all species of naturally occurring birds in the wild state in the European Territories and member states to which the treaty applies.

It covers the protection, management and control of these species…”

Article 2 provides:

“Member states shall take the requisite measures to maintain the population of the species referred to in Article 1 at a level which corresponds in particular to ecological common scientific and cultural requirements while taking account of economic and recreational requirement, or to adapt the population of the species at that level.”

98.

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive) provides at Article 3(1) that a network of “special areas of conservation” (SAC) was to be set up and known as Natura 2000 to include all SPA’s designated under the Birds Directive.

99. Article 6 of the Habitats Directive states:

“3…. any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the sites conservation objectives. In the light of the conclusions of the assessment of the implications of the site and subject to the provisions at paragraph 4, the competent national authorities shall agree to the plan or project only having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

If,in spite of a negative assessment a negative assessment of the implications of the site and in the absence of alternative

solutions, a plan or project must nevertheles

s be carried out for comparative reasons of over riding interest, including those of a social or economic nature, the member states shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the commission of the compensatory measures adopted where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health and public safety, to beneficial consequences of primary importance to the environment or, further to an opinion from the commission to other imperative reasons of over riding public interest.”

100. The Birds and Habitats Directives are transposed into English Law by the

Conservation of Habitats and Species Regulations 2010 (2010 regs)

101. Regulation 61of the 2010 regs provides so far as is material:

“1) A competent authority before deciding to undertake or give any consent, permission or other authorisation for a plan or project which-

a) is likely to have a significant e

ffect on European site... (either alone or in combination with other plans or projects), and;

b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications for that site in view of that sites conservation objectives.”

102. Regulation 7(1) defines competent authority to include ministers, departments, public bodies of any description and persons holding public office. Regulation 8(1) defines European sites as including SPAs and SACs.

103. At the time of the decision reg 9 of the 2010 regs provided:

“9. (1) The appropriate authority and the nature conservation bodies must exercise their functions under the enactments relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive. “

(2) Paragraph (1) applies, in particular, to functions under the following enactments-

(a) Part 3 of the 1949 Act (nature conservation);

(b) section 15 of the Countryside Act 1968(1) (areas of special scientif

ic interest);

(c) Part 1 (wildlife) and sections 28 to 28S(2) and 31 to 35(3) of the WCA 1981 (which relate to sites of special scientific interest);

(d) sections 131, 132 and 134(4) of the Environmental Protection Act 1990 (which relate to nature conservation functions of the Countryside Council for Wales);

(e) The Natural Environment and Rural Communities

Act

2006(

5); and

(f) Th

ese Regulations.”

The appropriate authority is the Secretary of State (regulation 3(1)). He is also

a “competent authority” which is defmed so as to include any minister of the crown or person holding a public office (reg 7(1)(a)). NE is a “nature conservation body”.

104.

With effect from August 16th 2012 an amendment to the 2010 regs was effected by the Conservation of Habitats and Species (Amendment) Regulations 2012. A new regulation 9A was inserted into the 2010 regs. It was introduced to improve the transposition of the Birds Directive. It reads:

“9A. (1) Without prejudice to regulation 9(1), the appropriate authority, the nature conservation bodies and, in relation to the marine area, a competent authority must take such steps in the

exercise of their functions as they consider appropriate to secure the objective in paragraph (3), so far as lies within their powers.

(3) The objective is the preservation, maintenance and reestablishment of a sufficient diversity and area of habitat for wild birds in the United Kingdom, including by means of the upkeep, management and creation of such habitat, as appropriate, having regard to the requirements of Article

2 of the new Wild Birds Directive.

(4) Paragraph (1) applies, in particular,

to-

(b) any function exercisable in relation to town and country planning.”

105. Further, under section

28 of the Wildlife and Countryside Act 1981 (WCA 1981) NE

is empowered to notify sites as being SSSis. Section 28G of the WCA 1981 states…

“(2) The duty is to take reasonable steps, consistent with the proper exercise of the authority’s functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features

by reason of which the site is of special scientific interest.”

106

. Under section 40 of the Natural Environment and Rural Communities Act 2006 (NERCA) there is a duty to conserve bio-diversity. That is imposed upon every public authority in the exercise of its functions.

Sub

missions

107. The claimant submits that the appeal site was clos

e to an area of significant nature conservation interest where there was a whole range of statutory and EU obligations that put ecology to the fore. The Inspector’s duty was not only to have regard to the purpose of conserving bio-diversity but to give effect to that purpose. There was no indication in the decision letter that section 40 of NERCA or section 28G of the WCA were considered. There was nothing to indicate that the Inspector had weighed up the issues of protecting bio-diversity and the impact on that or the SSSI in his decision letter. It was not for the claimant to ensure the Inspector had understood the applicable law; it was something which the Inspector had to take of his own initiative. The claimant relies on the opinion of Lady Clarke of Calton in the Petition of Sustainable Shetland (supra) again.

108

. The claimant observes that there was no consideration in the decision letter of the Birds Directive. The decision letter has no analysis of the significant level of disturbance nor any evaluation as to the level of disturbance which could arise from the development in itself as required. Alone that was enough to quash the decision letter.

109. In relation to the Habitats Directive the claimant submits that there is a clear breach of

Article 6(3) because there was no appropriate assessment.

110.

To be “appropriate” an assessment, the claimant submits, must be thorough, as

follows:-

Under Article 6(3) of the Habitats Directive. “an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects affect the sites conservation objectives must be identified in the light of the best scientific knowledge in the case”: Case C127/02

Landelikje Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserji [2004) E

.C.R. 1-7405 at paragraph 61.

An assessment under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings in conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the SPA concerned: Case C/404/09 Commission v Spain at paragraph

100:

opinion of Advocate General Kokott at paragraphs 138 and /-–