England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		14th July 2008

MR JUSTICE SULLIVAN:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of an inspector appointed by the first defendant dismissing the claimant's appeal against the refusal of the second defendant to grant planning permission for the demolition of two dwellings and the erection of 14 two-bedroom apartments in two blocks of seven apartments, together with associated parking and access, at 24 and 26 The Avenue, Crowthorne. The inspector's decision is contained in a decision letter dated 12th September 2007, and followed a hearing on 15th August and site visits made on that and the following day.
2. The appeal site is located 1.4 kilometres' travel distance and approximately 990 metres linear distance from Crowthorne Woods which form part of the Broadmoor to Bagshot Woods section of the Thames Basins Heath Special Protection Area ("the SPA"). The appeal site is also about 1.36 kilometres from the Sandhurst to Owlsmoor Bogs and Heaths section of the SPA.
3. In paragraph 4 of the decision letter the inspector identified three main issues. The effects of the proposal on the character and appearance of The Avenue; whether adequate provision was made to mitigate the off-site impacts of the development on local services, amenities and infrastructure; and the likely effect of the proposal on the integrity of the SPA. The inspector resolved the first of those two issues in the claimant's favour, but dismissed the appeal because his conclusions in favour of the claimant did not:

"... outweigh my conclusion that by failing to make provision for any SANGs within the undertaking, the proposal could, in combination with other plans and projects, have a significant adverse effect on the integrity of the SPA."

4. In these proceedings the claimant challenges the lawfulness of the inspector's decision on that third issue.

Legal and factual background

5. Regulation 48 of the Conservation (Natural Habitats etc) Regulations 1994 ("the Regulations"), which transposes into domestic law Article 6(2) and (3) of the Habitats Directive 92/43/EEC ("the Directive") provides, so far as relevant:

"48.—(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 effect on a European site in Great Britain (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

...

(3) The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.

...

(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site."

6. The SPA is a European site for the purposes of Regulation 48 and the "appropriate nature conservation body" for the purposes of Regulation 48(3) is Natural England.
7. Natural England objected to the proposed development. In a letter dated 13th February 2007 to the second defendant it said (inter alia):

"Owing to the proximity of the site to the SPA, Natural England is of the opinion that the increased number of dwellings, in combination with other dwellings proposed near to the SPA, would be likely to have a significant effect on the SPA in the context of regulation 48 of [the Regulations]. Before granting planning permission the planning authority should undertake an appropriate assessment of the implications of the development, on the SPA, in the light of the site's conservation objectives. The conservation objectives are to maintain and, where not in favourable condition, to restore, the habitats of the nightjar, woodlark and Dartford warbler, with particular reference to lowland heathland habitats.

Whilst on its own the development may not adversely affect the integrity of the SPA, in combination with other dwellings proposed near to the SPA, the development would be likely to contribute to a deterioration of the quality of the habitat on which the birds depend and increased disturbance to the bird species for which the SPA is classified, by reason of increased access to the heath including access for general recreation and dog-walking.

It would be possible to mitigate the effects of the proposed development by providing, or contributing to, additional green space to avoid an increase in the extent of recreational and dog-walking pressure on the SPA. This additional open space would need to be a more attractive alternative, to the occupants of the new housing, than the SPA. It would therefore have to meet a range of specifications in terms of the nature, size and location of the open space."

8. Natural England produced a more detailed written statement dated 24th May 2007 for the hearing on 15th August 2007. In that statement it said (inter alia):

"It is Natural England's opinion that the project under appeal is likely to have a significant effect on the SPA in combination with other plans or projects. This opinion is adopted bearing in mind the advice in paragraph 13 of Circular 06/2005 including the ruling of the European Court of Justice that an appropriate assessment is required where it cannot be excluded, on the basis of objective information, that the proposal will have a significant effect on the site. ... If that is also the view of the decision maker it will be necessary to undertake an appropriate assessment of the implications of the housing project on the conservation objectives of the SPA. ...

It is the advice of Natural England that, on the information available, it cannot be ascertained that the housing project, as submitted, would not have an adverse effect on the integrity of the SPA. That is because of the increased effects on the SPA that would result from the higher number of people that would be living near to the SPA if this and other housing proposals were to be permitted."

9. The ECJ ruling referred to by Natural England (ECJ C-127/02) is usually known as the Waddenzee judgment. The effect of that judgment for present purposes is that, when deciding whether the proposed development in combination with other proposed residential developments, was "likely to have a significant effect on the SPA" the inspector, as the competent authority for the purposes of Regulation 48(1), was required to apply the precautionary principle and to proceed on the basis that significant harm was "likely" if the risk of it occurring could not be excluded on the basis of objective information: see paragraphs 40-45 of the ECJ's judgment in Waddenzee and R (Hart District Council) v Secretary of State for Communities and Local Government and others [2008] EWHC 1204 (Admin) at paragraphs 43 and 78.

The claimant's grounds of challenge

10. In both the claim form and in Mr Warren's skeleton argument on behalf of the claimant it was contended that the inspector had misdirected himself as to the Regulations because he had muddled the "significant effect test" with the "appropriate assessment test", namely that the integrity of the SPA must not be adversely affected.
11. That submission was, rightly, not pursued in the light of Mr Maurici's skeleton argument on behalf of the first defendant. It is clear that the inspector in paragraph 44 of the decision letter was responding to the contention in the witness statement of Mr Bond, the claimant's planning consultant, who appeared on its behalf at the hearing, that:

"Consistent with the application of the Habitat Regulations, the proposal will not have a significant effect on the integrity of the ... SPA such that planning permission can be granted."

12. Where then in the decision letter did the inspector go wrong? Mr Warren accepted that in paragraphs 27-37 of the decision letter the inspector accurately summarised the relationship of the site to the SPA; the approach to be adopted under the Regulations and under relevant government advice, as contained in Circular 6/2005; Natural England's advice as to the effect of the appeal proposal on the SPA; the characteristics of the SPA; and the three-pronged strategic approach in the Thames Basin Heaths Delivery Plan ("DP"), which includes, as one of its three elements, the provision of a strategic framework of suitable alternative natural green spaces ("SANGs").
13. Mr Warren submitted that the inspector had misdirected himself because he had approached the SANGs issue on the basis that the relevant SANG or SANGs had to be secured by a section 106 agreement, and had failed to consider the claimant's argument, as presented at the hearing by Mr Bond, that because of the existence of alternative green spaces in the locality, the proposed development, even when considered in combination with other proposed residential developments, would not have a significant effect on the SPA. For this submission Mr Warren relied on paragraph 37 of the decision letter, which was in these terms:

"In order for the proposal to proceed, and before the Habitats Regulations decision making procedure even commences, NE considers that sufficient avoidance measures proposed by way of a legally enforceable obligation must be incorporated within the proposal, including SANGs provision. NE is the appropriate nature conservation body in relation to the application of the Habitats Regulations and I have afforded its views significant weight."

14. In my judgment all that the inspector was doing in that paragraph was summarising Natural England's approach to mitigation and avoidance measures, namely that if sufficient avoidance measures (including SANGs) were incorporated into the proposal itself so that it could be concluded on the basis of objective evidence that there was no risk of significant harm to the SPA, an appropriate assessment would not be necessary "before" the proposal could proceed: see Hart at paragraphs 77-79.
15. In his written statement for the hearing, Mr Bond had relied upon the fact that:

"The area around the appeal site is characterised by a number of informal areas of open space that have the characteristics of SANGs. With reference to Plans DB1 and 2 the areas of Suitable Alternative Natural Green Space (SANGS) identified include:

• Edgbarrow Hill

• Ambarrow Court/Ambarrow Hill

• Horseshoe Lake

• Gorrick Wood

• Finchastead Ridges and Simons Walk

• Viking Field.

...

Of these 6 identified SANGS 3 lie within close proximity of Crowthorne (within Bracknell Forest Borough Council). The remaining 3 lie within Wokingham Borough. I deal with each of the SANGS by reference to their location within the two authority areas."

16. Mr Bond placed particular reliance on Edgbarrow Hill:

"In particular the Edgbarrow Hill area (61.5 hectares) lies under 700m walking distance from the appeal site. The characteristics of walkers and dog walkers confirm that this area will be particularly attractive and popular to the appeal residents than the more [distant] SPA."

Mr Bond acknowledged that:

"The SANG areas in Wokingham Borough (Gorrick Wood, Finchamstead Ridges and Simons Walks and Viking Field) lie slightly further away from the appeal site. I deal with each of these in turn below."

17. The inspector responded to this evidence in paragraphs 38-41 of the decision letter:

"38. Some local planning authorities, including Bracknell Forest Borough Council (BFBC), are bringing forward interim measures that provide the opportunity for new residential development to contribute to the delivery of a network of SANGs in their own areas. The appellants have identified one possible SANG (Edgbarrow Hill/Chaucer Woods) within that borough which is closer to the appeal site than the SPA. However, I note that this particular site is not referred to in BFBC's Supplementary Planning Document entitled Limiting the Impact of Development adopted July 2007, which includes SPA avoidance and mitigation measures.

39. As BFBC's other SANGs are not as close to the appeal site as the SPA, they are not likely to be as attractive to future occupants of the appeal scheme and I can afford the appellants' submissions on these matters little weight. Moreover, Wokingham Borough Council is still in the process of formulating its own SANGs delivery strategy and the appellants have been unable to enter into the necessary planning obligation with either Council regarding SANGs provision.

40. I note that the appellants' submitted unilateral undertaking makes provision for other off-site avoidance measures, notably a restrictive covenant to prevent future occupants of the proposed apartments keeping pets and the provision of information/education leaflets to residents. The leaflets would highlight the availability and accessibility of SANGs within 5km of the appeal site and raise awareness about the sensitivity of the SPA.

41. These measures may go some way towards limiting the proposal's impacts on the SPA. However, having regard to the precautionary principle, which the Habitats Regulations apply as a matter of law, the failure also to make provision for any SANGs within the undertaking means that I cannot ascertain that the proposal would not adversely affect the integrity of the SPA. Consequently, the circumstances that could lead to the grant of planning permission envisaged by the remaining tests set out in paragraphs 23-28 of Circular 06/2005 are not, in my view, present here."

18. Mr Warren submitted that the inspector had not reached any clear conclusion in paragraph 38 in respect of Edgbarrow Hill.
19. I do not accept that submission. The decision letter must be read as a whole and if one reads paragraphs 38 and 39 together, it is clear that the inspector felt able to give the claimant's submissions in respect of Bracknell Forest Borough Council's SANGs, including Edgbarrow Hill, little weight. He did so because in respect of Bracknell Forest Borough Council's "other SANGs", they were not as close to the appeal site as the SPA. Whether, by reason of the fact that they were further from the SPA than the appeal site, those sites would sufficiently reduce the increased recreational pressure on the SPA as a result of the appeal proposal, when considered in combination with other residential proposals in the area, was pre-eminently a matter of planning judgment for the inspector.
20. On any fair reading of the decision letter, the inspector also attached little weight to the appellant's submissions in respect of the SANGs in the second defendant's district: they were slightly further away from the appeal site than the "other SANGs" in Bracknell Forest Borough Council and, unlike Bracknell Forest Borough Council, the second defendant was still in the process of formulating its own delivery strategy. Thus unlike the open spaces within Bracknell Forest, there had been no formal evaluation of their suitability as SANGs, as had been contained in Bracknell Forest Borough Council's Supplementary Planning Document ("SPD"), referred to in paragraph 38 of the decision letter.
21. It would have been obvious to those attending the hearing who were familiar with the terms of the SPD that the inspector did not attach little weight to Edgbarrow Hill simply because it was not referred to in the SPD. If one looks at that document and the technical reports leading up to it, it is clear why the inspector gave little weight to Mr Bond's submissions in relation to Edgbarrow Hill. The SPD had considered which open spaces in the borough had the potential to deflect visitors from the SPA. A number of sites, including Edgbarrow Hill, met the criteria for further assessment of suitability. However, as a result of that further assessment Edgbarrow Hill was dropped from the final list of suitable SANGs.
22. Paragraph 20.4 of the Thames Basins Heaths SPA Technical Background Document to the Core Strategy DPD dated October 2006 explained:

"This exercise identified the following areas of open space, which could be secured and enhanced to provide suitable alternatives to use of the SPA over the lifetime of the development. A full description of why these sites were chosen and why others were rejected is detailed in Appendix 8 ..."

23. The conclusions in Appendix 8 in respect of Edgbarrow Hill, under the heading "Potential as impact avoidance measure", were:

"In general visitors to this site tend to be regular, local users visiting for shorter periods of time to walk their dogs or as a cut through. It was rated as a quiet site, and had correspondingly low levels of visitors. The semi-natural and quiet nature of the site indicate this would make a suitable alternative to the SPA, however the site is not within the Borough Council's ownership, and there have been indications that the public access to this site is to be restricted because of security measures rather than extended. There is a public right of way across the site, but the additional access required to attract people from the SPA is unlikely to be secured."

24. In the light of these conclusions, the inspector's decision to give "little weight" to a site where there had been indications that public access to it was to be restricted, rather than extended, is readily comprehensible.
25. It is true that the inspector referred to the fact that the claimant's unilateral undertaking did not include any provision for SANGs (it did not), but he did not reject the claimant's case because the other SANGs referred to by Mr Bond were not secured by section 106 obligations, but because, in the case of the open space particularly relied upon by Mr Bond, Edgbarrow Hill, it had not made it to the final list of SANGs for the reasons given in the SPD and in the case of the other SANGs they were not as close to the appeal site as the SPA, and the suitability of those open spaces in Wokingham as SANGs had not yet been the subject of any assessment, such as that which was contained in Bracknell Forest Borough Council's SPD.
26. Although Mr Warren referred me to two inspector's decision letters in respect of other appeals, where the potential impact on the SPA was an issue, each decision turns on its own particular facts and it is noteworthy that in both of those cases the inspectors relied on substantial areas of open space that were significantly closer to those appeal sites than the relevant parts of the SPA. The only open space in that category in the present case was Edgbarrow Hill, and as explained above the reasons why the inspector attached little weight to its availability are readily understandable as soon as one reads the document to which he referred in paragraph 38 of the decision letter.
27. Finally, Mr Warren criticised paragraph 32 of the decision letter, in which the inspector said:

"The Forestry Commission's (FC) Thames Basin Forest Design Plan 2007-2037 includes specific habitat management proposals for Crowthorne Woods. However, this is a long term management strategy and it is likely that the proposed development will have been completed and new recreational patterns established within the area well before the habitat management measures have been completed. Therefore, I can only afford this limited weight."

28. In this paragraph the inspector was dealing with the on-site habitat management aspect of the DP. It was submitted that the inspector's reasoning in paragraph 32 was "nonsensical" because, although the management strategy was a long-term one, there would be continuous habitat improvement over the period of the strategy. Thus, the strategy proposed that the conifer woodland would be managed with parts of the forest being cleared and planted in rotation:

"This will allow the SPA bird populations to utilise the open ground found between newly planted trees until the trees become fully established. At this point, further parts of the forest will be cleared, providing open ground for another 7 years or so."

29. In my judgment the inspector's reasoning in paragraph 32, far from being "nonsensical", is readily intelligible and wholly reasonable. He was considering the claimant's appeal in September 2007. The Forestry Commission's Thames Basin Forest Design Plan 2007-2037" was clearly a long-term management strategy, which had barely commenced at the time of the hearing. While it would result in a continuous improvement of the habitat for the protected species in the SPA, that improvement would inevitably take time. Mr Warren relied on the inspector's statement that the proposed development would have been completed and new recreational patterns established within the area "well before the habitat management measures have been completed", but the decision letter is not an English language test paper. It must be read in a common-sense way. At the hearing there was simply nothing to suggest that any significant improvement to the habitat in the SPA would have taken place before completion of the proposed development and before new recreational patterns had been established within the area.
30. The claimant's criticism of paragraph 32 might have had some force if, for example, the Forestry Commission had been halfway through a 30-year management plan, with habitat improvements readily visible on the ground. But in the circumstances before the inspector, it is obvious as a matter of common sense why, in 2007, he felt able to accord little weight to a strategic plan that was to be put into effect over a period of the next 30 years.
31. For these reasons there was, in my judgment, no error, much less any error of law, in the inspector's decision letter. It follows that this application must be dismissed.
32. MR MAURICI: Thank you, my Lord. Costs is agreed. My Lord, it is agreed that the claimant will pay the defendant's costs summarily assessed in the amount of £8,096.
33. MR JUSTICE SULLIVAN: Confirmed, Mr Warren?
34. MR WARREN: Yes.
35. MR JUSTICE SULLIVAN: Thank you very much. Then the application is dismissed. The claimant is to pay the defendant's costs summarily assessed in the agreed sum of £8,096. Any more for any more?
36. MR MAURICI: No, thank you, my Lord.
37. MR JUSTICE SULLIVAN: Thank you very much.