QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Christopher Prideaux)
|Buckinghamshire County Council
- and -
|FCC Environment UK Limited
Mr David Elvin QC and Mr Richard Turney (instructed by Head of Legal and Democratic Services, Buckinghamshire County Council) for the Defendant
Mr James Maurici (instructed by Walker Morris Solicitors) for the Interested Party
Hearing dates: 12, 13 and 14 March 2013
Crown Copyright ©
Mr Justice Lindblom:
The environmental statement
"Similar habitats are available in the local surrounding landscape, which may reduce the magnitude of the predicted impacts for many species. However, black hairstreak has limited dispersal ability and alternative habitats may not be accessible. Research has shown that black hairstreak took 13 years for a new colony to become established from existing colonies only 400m away. The development is therefore predicted to have a direct negative impact upon invertebrate assemblages on the access road of up to Parish value and upon populations of grizzled skipper and glow worms of up to District Value. The development is also predicted to have a direct negative impact on black hairstreaks of up to County value."
One of the identified impacts on black hairstreak butterflies was the effect of dust generated during construction. Combined with "habitat loss and fragmentation", this was predicted to have "significant adverse effects" upon the local populations of this species (paragraph 11.150).
The further environmental information
The "Updated Ecological Impact Assessments"
"Existing functional corridors of blackthorn across the main site would be maintained and enhanced. The access road scheme has been redesigned to protect the majority of the blackthorn scrub along the access road. Where cutting back or removal of blackthorn is unavoidable, hairstreak eggs would be translocated prior to these works commencing. The translocation plan would be designed and implemented through the Ecological Management Plan."
Almost 9,500 square metres of new blackthorn-dominated scrub habitat would be created; about 5,000 metres of new hedgerows "would provide new habitat connectivity in the medium [to]long-term"(ibid.). The residual impacts on the butterfly species "of interest in the designation of the SSSIs" were described as being "negative in the short term, but not significant at the National level" (paragraph 2.6). The "direct impacts" on these species would be "limited" because their "major population centres … are not located within the footprint of the proposed development" (ibid.). The provision of "suitable additional and compensatory habitats" was said to be a "positive impact, significant at the National level in the medium to long term" (ibid.).
"The LPA must consider whether Article 12 will be breached, and if it will be breached, the likelihood of the proponent gaining the necessary derogation licence from Natural England.
The ES confirms that Article 12 would be breached … twice:
1) the destruction of bat roosts of low conservation significance for common pipistrelle and brown [long-eared] bats.
2) a risk of injury or killing; the potential for destruction of resting places and disturbance that could impair the ability of great crested newts to survive, to breed or to hibernate or migrate.
In both cases, evidence is presented within the ES and other supporting documents to show that the impacts have been minimised; that mitigation measures proposed are in line with best practice and, as far as is possible, have been scrutinised by Natural England. Natural England has not raised an objection to the assessment of impacts or mitigation measures proposed for EPS. On this basis, it is our conclusion that EPS licences for these breaches are likely to be granted."
The Ecological Management Plan
Natural England's objection
"[Natural England] has not previously maintained an objection to the application in respect of impacts to bats and this position was confirmed in our recent meeting. [Natural England's] view is that the mitigation measures proposed for lost bat roosts are broadly suitable and that detailed mitigation proposals, which are subject to scrutiny by [Natural England's] licensing department, are likely to be suitable to avoid effects on favourable conservation status of the species concerned. [Natural England] also expressed the opinion that the impacts associated with foraging and commuting habitat, including Bechstein's bats, would be addressed by the mitigation and compensation measures proposed in the EMP, which would ensure that the conservation status of local populations of bats would not be adversely affected."
"[Natural England] has not previously maintained an objection to the application in respect of impacts to great crested newts (GCN) and this position was confirmed in our recent meeting. Natural England's planning liaison and European Protected Species (EPS) licensing team have reviewed SLR's 2011 GCN reports and proposed mitigation, through the formal "GCN Masterplan", which accompanied the planning application. The most recent GCN Masterplan (August 2011, v 5) has been approved by [Natural England's] licensing team through the recent grant of an EPS licence for a permitted phase of this masterplan … . Therefore, the appropriate authority (Natural England) has confirmed that the baseline data and mitigation proposed in the masterplan for the Greatmoor EfW is suitable to ensure that the favourable conservation status of local populations of GCN would not be adversely affected by the proposed development, in combination with other associated developments in the Calvert area."
The Development Control Committee's meeting on 14 February 2012
The officers' reports
"… Key principle (vi) states that the aim of planning decisions should be to prevent harm to biodiversity. Where granting planning permission would result in significant harm to those interests, local planning authorities will need to be satisfied that the development cannot reasonably be located on any alternative sites that would result in less or no harm and in the absence of any such alternatives, planning authorities should ensure that before planning permission is granted, adequate mitigation measures are put in place. Where a planning decision would result in significant harm to biodiversity which cannot be prevented or adequately mitigated against, appropriate compensation measures should be sought and if that significant harm cannot be prevented, adequately mitigated against or compensated for, then planning permission should be refused. …".
"… Should Natural England not be satisfied and maintain its objection then I consider that there would be a significant adverse effect on the intrinsic environmental value of the four SSSIs around the site contrary to the provisions of policy 24 of the MWLP and NRM5 and NRM15 of the SEP. Unless members are of the view that the benefits (including need) of the development at this site clearly outweigh both the impacts that it is likely to have on the features of the SSSIs that make them of special scientific interest and any broader impacts on the national network of SSSIs, then planning permission should be refused for this reason. If however [FCC] satisfies Natural England's remaining concerns leading it to withdraw its objection, I would consider that a reason for refusal in terms of the impact on the SSSIs could not be sustained and that it would not be contrary to the provisions of the … policies. …".
"… [In] considering alternative sites, I would advise that the evidence base for the [core strategy] has not identified a specific access road to the site. The evidence base has considered five alternative route options of which the proposed access road is one. As set out in paragraph  of this report, the applicant has also considered seven alternative access roads and a detailed assessment of one alternative was also carried out. … The applicant's conclusion is that the proposed access road along the disused railway line is preferred as it would not involve the use of local roads and would lead to less disturbance to local residents and visual intrusion than the alternatives considered. It is a distinct former transport corridor providing direct access to the A41. The applicant also concludes that whilst there would be ecological impacts, the alternative raises similar concerns with less opportunity for mitigation."
"… [The] applicant has also considered alternatives to the access road proposed, including one option in some detail. I would advise that as some of the European Protected Species interest relates to the proposed access road, members could take the view that, if there is a better-performing (i.e. less harmful) alternative access roads to the one proposed, then the second test would not be met. Taking account of the evidence base for the [core strategy] and the work carried out by the applicant with regard to alternative routes into the site, it would seem that with regard to impacts on residential amenity and other highway users, there is no better way of achieving a direct access to the A41 for road transport to and from the site, than along the disused railway line as proposed in this application. The applicant argues that the ecological impacts would be less, but it could be argued that the only way to gain a real comparison with the alternatives, in terms of the level of harm that would be caused to European Protected Species, would be for a planning application to have been brought forward with the same level of ecological survey work attached to it as has been provided in support of this application. There is also the need to consider alternative means of transport, which in this case is most obviously by rail."
"… A new access road is essential if the removal of the existing impact of heavy vehicles using local roads to the Brackley Lane access to the site is to be achieved and I consider that, without this, the additional heavy vehicles impact would be unacceptable. Whilst I cannot advise members with certainty that the impact on Protected Species would not be less if an alternative access to that proposed in this application were to be brought forward for consideration, it does seem to me that on the basis of the work that has been carried out, there is sufficient evidence that other impacts would be considerable and hard to overcome. On the basis of an assessment of the available evidence, I therefore consider that, on balance, there is no satisfactory alternative access route which would be less harmful and so that there is no satisfactory alternative and in this respect the second test is met."
"Therefore, if members are satisfied that the need for this facility to come forward constitutes an over-riding public interest, that there is no satisfactory alternative site including the proposed access road and that the impact to bats and Great Crested Newts would not be detrimental to the maintenance of their populations at a favourable conservation status in their natural range, then the above test for the impact on European protected species is met. Planning permission could therefore be granted and in this respect the development is in accordance with the provisions of the Habitats Directive and the Conservation of Habitats and Species Regulations 2010 and the guidance in PPS9."
"… [If] members are satisfied that there would be no significant and lasting adverse impact on the nationally protected species or their habitats and that in the longer term there would be a significant enhancement to the biodiversity value of the application site, I consider that the application meets the requirements of Policy 25 of the MWLP and NRM5 and NRM15 of the SEP. If Natural England withdraws its objection then I also consider that in respect of the SSSIs there would be no conflict with policy 24 of the MWLP nor policies NRM5 and NRM15 of the SEP."
The Development Control Committee's meetings on 17 and 20 April 2012
"… The Planning Officer stated that Buglife had referred to the NPPF and suggested guidance which indicated that in certain circumstances the application should be deferred or delayed. The Planning Officer advised that this was not the case. The NPPF says 'if significant harm is unavoidable, or cannot be adequately mitigated against or – as a last resort – compensated for, then planning permission should be refused.' Buglife had interpreted this as meaning the application should be refused, but this is not the intention of the NPPF. It states that harm to biodiversity should be avoided or mitigated. If it cannot be avoided, compensation should be given as a last resort. It was noted that Natural England accepted what would be put in place if the application was approved. The member stated that the NPPF also says 'Planning permission should also be refused if it would result in the loss or deterioration of irreplaceable habitats.' The Ecological Adviser from Jacobs stated that the habitat on the site was not irreplaceable and not structural so it could be replaced. With regard to where the habitat would be situated this would form part of the ecological management plan which would need to be submitted in more detail for approval. The Planning Officer had made reference to invertebrate groups and in this connection it was possible to move and relocate their habitat structure."
The discussion continued in this way:
"A member stated that Buglife stated that loss of habitat structures and corridors would have an impact on wildlife and asked for clarification. The Ecological Adviser said he believed this was incorrect. The mitigation would retain many network features in the areas and much of the vegetation was being retained. Other corridors were being strengthened.
With regard to timescale and monitoring of translocation, it was noted that this scheme would … also be submitted for approval in due course."
The Secretary of State's letter of 22 June 2012
The planning permission
"There is an overriding need for an Energy from Waste recovery facility to be provided by 2016 which outweighs the significant adverse impact on the settings of Lower Greatmoor Farmhouse and Finemeerhill House Grade II Listed Buildings. Subject to the provision of a Section 106 legal agreement relating to [these] buildings and their settings and other matters and a Section 278 Highways Act agreement and conditions set out above, the proposed development is considered to be generally in compliance with policies 10-13, 17-22, 25, 28-31, 33, 36-39 of the Buckinghamshire Minerals and Waste Local Plan 2004-2016; Policies GP38-GP40, GP45, GP60, GP84, RA29 and RA36 of Aylesbury Vale District Local Plan; CC1, CC2, CC4, CC6, CC8, NRM1, NRM2, NRM4, NRM11, NRM13, NRM14, NRM16, W3-W5, W7, W11-W15, W17, M4, C4, C6 and BE6 of the South East Plan; Planning Policy Statement 10; The Waste Strategy for England 2007; The Government Review of Waste Policy in England 2011; National Policy Statement EN-1 and EN-3; Written Ministerial Statement: Planning for Growth (23 March 2011); The EC Landfill Directive 2007/76/EC; The Waste Incineration Directive 2000/76/EC; The Revised Waste Framework Directive 2008/98/EC; The Renewable Energy Directive 2009/28/EC and the National Planning Policy Framework 2012."
"No part of the development including the proposed access road (the disused railway line) shall take place until the Ecological Management Plan … has been reviewed and updated and the amended document has been submitted to and approved in writing by the County Planning Authority. The Ecological Management Plan as submitted shall include:-…v) The creation of all habitats within and outside of the application boundary, including the enhancement area … as early as appropriate to minimise the time lag between the destruction of habitats and the creation of replacements.…xxii) The annual submission for five years of the results of surveys of black and brown hairstreak butterflies in accordance with Table 9-2 of the EMP. The carrying out of mitigation measures, if negative impacts, attributable to the development, are observed on the populations, … .xxiii) Confirmation of the volumes of railway ballast that will be made available from the ground preparation works along the disused railway line to develop more of the "open mosaic" (early successional) habitat for the butterflies to recreate the track bed habitat that is being lost;xxiv) Confirmation of the locations and areas of the habitat to be created, in accordance with recommendations made by the County Planning Authority in consultation with Natural England;xxv) The submission of a programme for monitoring general invertebrate interest along and adjacent to the line of the proposed new access road … and within newly created habitats to be submitted to and approved in writing by the County Planning Authority before the commencement of works on site. All subsequent work shall comply with the provisions of the agreed monitoring strategy.…xxx) The management of the blackthorn scrub along the proposed access road … to initially restore the balance between younger and older age classes and ultimately to establish a small patch cutting regime on approximately a 30 years rotation … to give a range of age classes spread along the length of the railway;xxxi) The retention of all cut scrub from the disused railway line and the use of this to create foraging habitat for newts and reptiles within the road margins.…xxxv) The implementation of the initial stages of the EMP as approved prior to the commencement of the development where specified and the continuance of works in accordance with the EMP throughout the operation of the development.
Condition 6 stated:
"No works associated with the new access … shall take place on the line of the disused railway, until the membership and Terms of Reference of the proposed Greatmoor Biodiversity Partnership have been submitted to the County Planning Authority and approved in writing. The partnership shall include the operator and its ecologist; representatives of the County and District Planning Authorities, Natural England and local ecological stakeholder organisations and shall be operated in accordance with the proposals contained in the Ecological Management Plan."
The derogation licences
The issues for the court
(1) whether, in considering the likely effects of the development on European Protected Species, the County Council failed to comply with the requirements of the Habitats Directive and the 2010 regulations, and, in particular, failed properly to consider alternatives for the proposed access road;
(2) whether the County Council unlawfully failed to apply relevant national policy on nature conservation in the NPPF; and
(3) whether the County Council failed to provide adequate reasons for its grant of planning permission.
Issue (1): European Protected Species
"The planning committee must grant or refuse planning permission in such a way that will 'establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range …' If in this case the committee is satisfied that the development will not offend article 12(1)(b) or (d) it may grant permission. If satisfied that it will breach any part of article 12(1) it must then consider whether the appropriate authority, here Natural England, will permit a derogation and grant a licence under regulation 44. Natural England can only grant that licence if it concludes that (i) despite the breach of regulation 39 (and therefore of article 12) there is no satisfactory alternative; (ii) the development will not be detrimental to the maintenance of the population of bats at favourable conservation status; and (iii) the development should be permitted for imperative reasons of overriding public importance. If the planning committee conclude that Natural England will not grant a licence it must refuse planning permission. If on the other hand it is likely that it will grant the licence then the planning committee may grant conditional planning permission. If it is uncertain whether or not a licence will be granted, then it must refuse planning permission."
Lord Brown did not agree. In paragraph 29 of his judgment he said this:
"In my judgment this goes too far and puts too great a responsibility on the planning committee whose only obligation under regulation 3(4) is, I repeat, to "have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by" their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1), the planning committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the planning committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England's own duty."
Lord Brown went on to say (in paragraph 30):
"Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so. The planning committee here plainly had regard to the requirements of the Directive: they knew from the officers' decision report and addendum report … not only that Natural England had withdrawn their objection to the scheme but also that necessary measures had been planned to compensate for the loss of foraging. … I cannot agree with Lord Kerr JSC's view … that regulation 3(4) required the committee members to consider and decide for themselves whether the development would or would not occasion such disturbance to bats as in fact and in law to constitute a violation of article 12(1)(b) of the Directive."
Agreeing with Lord Brown, Baroness Hale of Richmond said:
"[44.] … In my view, it is quite unnecessary for [an officers'] report [to committee] such as this to spell out in detail every single one of the legal obligations which are involved in any decision. Councillors were being advised to consider whether the proposed development would have an adverse effect on species or habitats protected by the 1994 Regulations. That in my view is enough to demonstrate that they "had regard" to the requirements of the Habitats Directive for the purpose of regulation 3(4). That is all they have to do in this context, whereas regulation 48(1)(a) imposes a more specific obligation to make an "appropriate assessment" if a proposal is likely to have an effect upon a European site. …
[45.] Furthermore, the United Kingdom has chosen to implement article 12 of the Directive by creating criminal offences. It is not the function of the planning authority to police those offences. Matters would, as Lord Brown JSC points out, have been different if the grant of planning permission were an automatic defence. But it is no longer. And it is the function of Natural England to enforce the Directive by prosecuting these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people to assess the meaning of the updated bat survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment."
Lord Mance said (at paragraph 55):
"With regard to the updated bat survey, there is no reason to believe that Natural England did not, when evaluating this, understand both the legal requirements and their general role and responsibilities at the stage at which they were approached by the council. … The important point is … that Natural England was well placed to evaluate this survey, and having done so, gave the advice they did. … ."
In his dissenting judgment Lord Kerr said this (in paragraph 82):
"It may well be that, if Natural England had unambiguously expressed the view that the proposal would not involve any breach of the Habitats Directive and the committee had been informed of that, it would not have been necessary for the committee members to go behind that view. But that had not happened. It was simply not possible for the committee to properly conclude that Natural England had said that the proposal would not be in breach of the Habitats Directive in relation to bats. Absent such a statement, they were bound to make that judgment for themselves and to consider whether, on the available evidence the exercise of their functions would have an effect on the requirements of the Directive. I am afraid I am driven to the conclusion that they plainly did not do so."
"This exercise is in no way a substitute for the licence application which will follow if permission is given. But it means that if it is clear or perhaps very likely that the requirements of the directive cannot be met because there is a satisfactory alternative or because there are no conceivable "other imperative reasons of overriding public interest" then the authority should act upon that, and refuse permission. On the other hand if it seems that the requirements are likely to be met, then the authority will have discharged its duty to have regard to the requirements and there would be no impediment to planning permission on that ground. If it is unclear to the authority whether the requirements will be met it will just have to take a view whether in all the circumstances it should affect the grant or not. But the point is that it is only by engaging in this kind of way that the authority can be said to have any meaningful regard for the directive."
The two sides in this claim disagreed about the status of those observations in the light of the Supreme Court's decision in Morge. For the claimant it was argued that they remained good law. For the City Council and FCC it was submitted that they were not.
"… Of course, Natural England may not in terms have expressed itself satisfied that the proposals in the Masterplan would comply with Art. 12 of the Habitats Directive. Natural England was only not objecting to the proposals – presumably on the basis that the impact on the foraging and roosting habitats of bats would be relatively modest. But the upshot was that when the Secretary of State was obliged to have regard to the requirements of the Habitats Directive to the extent that they may be affected by his planning functions under the 1990 Act, he was entitled to have regard to Natural England's views about the impact of the proposals on the foraging and roosting habitats of bats, and to grant planning permission unless it was likely that (a) a licence under reg. 53 would be required and (b) when it was applied for, it would be refused."
Keith J. went on to say (in paragraph 53):
"Judgment in Morge was handed down on 9 January 2011, a few weeks after the Secretary of State made the decision which is being challenged in this case. At that time, the test was the more onerous one adopted by the Court of Appeal in Morge … and [Woolley], … namely that if the planning committee was uncertain whether or not a licence under reg.53 would be granted, planning permission should be refused. So if the Secretary of State took the view that it was likely that a licence under reg.53 would be granted if it was sought, all the more so for him to have thought that it was unlikely that it would not be granted if it was sought."
I understand that an appeal against Keith J.'s decision in Elliott was dismissed by the Court of Appeal on 23 April 2013.
The European Commission's guidance
"The analysis of whether "there is no other satisfactory alternative" presumes that a specific problem or situation exists and needs to be tackled. The competent national authorities are called upon to solve this problem or situation by choosing, among the possible alternatives, the most appropriate that will ensure the best protection of the species while solving the problem/situation. To ensure the best protection of species, these alternatives must be assessed with regard to the prohibitions listed in Article 12. They could involve alternative locations (or routes), different development scales or designs, or alternative activities, processes or methods."
"Evidently, the requirement to consider seriously other alternatives is of primary importance. The discretionary power of Member States is limited, and where another solution exists, any arguments that it is not "satisfactory" will need to be convincing. Moreover, it should be stressed that another solution cannot be deemed unsatisfactory merely because it would cause greater inconvenience to or compel a change in behaviour by the beneficiaries of the derogation."
Submissions for the claimant
(1) In the planning application documents and in the environmental statement and further environmental information the consideration of alternatives to the proposed access road was sparse. In section 7A in the further environmental information ("Alternatives"), six possible alternative routes, each of which would have provided some relief to local villages, were dismissed simply because they did not "completely remove traffic" from local roads. There was no assessment of the ecological impacts, including impacts on European Protected Species, of any of these alternatives, and no weighing of the environmental benefits of the alternatives against any ecological harm. As for the one alternative that was assessed in more detail, no impact on European Protective Species was identified, and there was no assessment of its possible effects on the Sites of Special Scientific Interest by comparison with the ecological impacts of the development proposed.
(2) The County Council failed to follow the correct approach to the "no satisfactory alternative" test. The correct approach can be seen in the European Commission's guidance. But that guidance was not applied. The officers did not mention it in their report. They ought to have identified "the most appropriate [option] that [would] ensure the best protection of the species while solving the problem/situation" (paragraph 37 of the guidance document). To ensure the "best protection" of the species affected, the alternatives had to be assessed "with regard to the prohibitions listed in Article 12" (ibid.). Above all, as paragraph 38 of the guidance stresses, derogations must be seen as a "last resort". Neither the officers nor the members had considered whether there was any satisfactory alternative to the proposed access road, to avoid the harm that both bats and great crested newts would suffer if that road were built. The officers' analysis in paragraphs 263 and 265 of their report was flawed. There was no evidence that any of the alternative access routes would affect any European Protected Species. But it was clear that FCC's development would harm both bats and great crested newts. This crucial difference between the impacts of the proposed development and the alternatives considered was never confronted by the County Council, or, indeed, by Natural England. By restricting the comparison between the proposals and alternatives to other matters such as residential amenity and visual impacts, the officers had led themselves and the members to ignore a crucial question – whether there was an alternative that achieved the "best protection" of the species in accordance with the Habitats Directive. This was what paragraph 37 of the European Commission's guidance document required. A specific failing in the officers' report was that they did not consider whether there was any way of avoiding the impact on bats that would be caused by demolishing the buildings at Upper Greatmoor Farm.
(3) In all the time when the application for planning permission was with the County Council, Natural England never grappled with the issues relating to the European Protected Species or the derogation tests in article 16 of the Habitats Directive. It never said whether those tests were likely to be complied with. It never asked itself whether there was any satisfactory alternative route for the access road. Its objection did not relate to impacts on European Protected Species. And the County Council's officers reported nothing to the committee about Natural England's views on those impacts. The County Council could not simply rely on the absence of a relevant objection from Natural England when considering whether derogation licences were likely to be granted. It had to make its own judgment as to whether the requirements of the Habitats Directive could be met and, in particular, whether there was "no satisfactory alternative" for the access road. All five members of the Supreme Court in Morge seem to have agreed on those principles. They divided only on an issue of fact – whether Natural England had formed and expressed a view and whether that view had been reported to the committee.
(4) If the County Council had properly assessed whether licences could be issued in this case, it might have concluded that this was unlikely. If so, planning permission should have been refused. Natural England had issued derogation licences after planning permission was granted. It later accepted that those licences were legally flawed because alternatives had not been sufficiently considered. When Natural England consented to judgment it could not say whether fresh licences would be granted. At no time before that would it have been able to offer the County Council a lawful view about the likelihood of licences being granted.
Submissions for the Council and for FCC
(1) Mr Dove's submissions face an insuperable hurdle in the decision of the Supreme Court in Morge. It is there that one finds the law on the task of a planning authority when determining an application for planning permission for development with implications for European Protected Species. The approach indicated in Woolley does not survive the decision in Morge. The County Council's duty under regulation 9(5) was simply "to have regard to the requirements of the directives so far as they may be affected by the exercise of those functions." It is for Natural England, and not for the County Council as a planning authority, to enforce compliance with the Habitats Directive. Regulation 9(5) does not require a planning authority to carry out its own shadow assessment to find out whether there will be a breach of article 12 of the Habitats Directive, or whether a derogation will be permitted and a licence granted.
(2) It is important not to misunderstand the European Commission's guidance. The guidance does not say that, in considering alternatives, a decision-maker must focus only on the impacts those alternatives would have on European Protected Species. In assessing whether an alternative is satisfactory or not it is necessary to take account of "objectively verifiable factors, such as scientific and technical considerations". The principles in the guidance were not misapplied in this case.
(3) The County Council was entitled to place considerable weight on the absence of any objection concerning European Protected Species from Natural England. After a long period of consultation and discussion Natural England's objection to the proposals was withdrawn. Natural England never objected on grounds relating to European Protected Species. And there was never any suggestion that it was anxious about the effects the development would have on European Protected Species or that it was unlikely to grant the derogation licences required. The only objection it had raised was on the grounds of possible impacts on butterflies that were not European Protected Species. The County Council was entitled to conclude that derogation licences were not unlikely to be granted. It is inconceivable that, as the "appropriate nature conservation body" under the 2010 regulations, responsible for ensuring the Habitats Directive is complied with, Natural England would not have objected if it envisaged refusing those licences. In this case therefore, in view of the Supreme Court's decision in Morge, it was clearly appropriate for planning permission to be granted.
(4) The County Council had in fact satisfied a test more onerous than was accepted by the Supreme Court in Morge. It did not go wrong in considering whether there was any "satisfactory alternative" to the proposed access road. It approached the question in a reasonable and realistic way. The officers concluded that the most viable alternative access would have a number of harmful environmental effects, including ecological impacts. Taking into account these impacts, there was no satisfactory alternative to the access route proposed (paragraphs 264 and 265 of the report). The claimant's complaint is really that the most viable alternative access route was not preferred, because no likely impact on European Protected Species had been identified on that route. This, however, is not what the law requires. The idea that the option with the least impact on European Protected Species must be chosen, irrespective of other considerations, is incorrect. It finds no support in the Habitats Directive, in the 2010 regulations or in the European Commission's guidance document.
(5) Mr Dove's attempt to separate this case from the principles in Morge was misconceived. It did not matter that, after planning permission had been granted, Natural England had consented to the quashing of the licences. This did not mean that the County Council was unable to conclude, when it did, that licences were likely to be granted.
(6) This ground of the claim is in any event academic, at least in part. The claimant's case concentrates mainly on the impact on bats from the demolition of the buildings at Greatmoor Farm. But the works required have now been done, under a licence granted by Natural England. No bats remain. No licence for works affecting them is now required. If the planning permission were quashed and had to be determined again, the claimant's concerns about the bats at Upper Greatmoor Farm would no longer be relevant.
Issue (2): NPPF policy on nature conservation
"There was no sentence-by-sentence analysis of PPS9. However, its overall tenor was not ignored, the adverse effects being carefully analysed. The respondents were entitled to conclude that the harm was not, in the terms of the circular, significant. They were entitled to take the mitigation proposed, and the assessment of its effect, into account when making their decision. They were entitled to give considerable weight to the representations of Natural England, the expert statutory consultees. Indeed, it would have been surprising if, having regard to the public interests involved, they did not give them such weight. The planning conditions imposed and the detailed section 106 agreement were, as Natural England accepted, a valuable safeguard. Natural England withdrew its objection to the planning application."
"When determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:
- if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then permission should be refused;
- proposed development on land within or outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest … should not normally be permitted. Where an adverse effect on the site's notified special interest features is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of Sites of Special Scientific Interest;
- the following wildlife sites should be given the same protection as European sites:
- potential Special Protection Areas and possible Special Areas of Conservation;
- listed or proposed Ramsar sites; and
- sites identified, or required, as compensatory measures for adverse effects on European sites, potential Special Protection Areas, possible Special Areas of Conservation, and listed or proposed Ramsar sites."
Submissions for the claimant
(1) The assessment of impacts on invertebrates presented in the environmental statement and the regulation 19 material betrayed an incoherent and unsubstantiated analysis. It exaggerated the positive impacts of the proposed compensation, downplayed the negative impacts, and depended far too much on mitigation measures whose success was at best uncertain and an Environmental Management Plan yet to be composed. The impacts of the development on the black hairstreak and brown hairstreak butterflies, even with mitigation, would be significant at a national level, at least until the replacement habitat had matured. There would also be impacts on the grizzled skipper butterfly, which, without mitigation, would be significant at a regional level. The "mitigation" proposed was the creation of replacement habitat. Such measures are more accurately described as "compensation". The prediction of positive impacts in the medium to long term was plainly wrong. It must assume (i) that the recreation of habitats elsewhere would preserve or increase the abundance of these species, and (ii) that the creation of further compensatory habitat would maintain the function of the disused railway line as a wildlife corridor for the invertebrate communities, linking the Sites of Special Scientific Interest. Both assumptions were bad. There was no scientific basis for assuming that the recreation of habitat would work. It was irrational of the County Council to conclude that the proposed mitigation for the impacts on the black hairstreak butterfly would be effective. The conditions imposed on the planning permission did not reflect the basis upon which Natural England withdrew its objection. They did not ensure that the mitigation would be successful.
(2) The County Council, in approving FCC's proposals, adopted an approach incompatible with national planning policy in the NPPF. This was a case of the kind envisaged in the first principle in paragraph 118 of the NPPF – a case of "significant harm" to biodiversity. It engaged the hierarchy of (i) avoidance, or, failing that, (ii) adequate mitigation, or, as a last resort, (iii) adequate compensation. Neither the County Council nor Natural England had understood that. This was a fatal flaw in the County Council's decision-making. The County Council had not assessed whether any of the alternatives would avoid, or reduce, the ecological harm that the proposed access road would cause, including the harm to the function of the disused railway as a link between invertebrate habitats. The County Council had neglected the priority given in government policy to the avoidance of impacts. And it had also absorbed into its own judgment the false optimism of the proposed habitat compensation.
(3) The County Council had also failed to heed the second principle in paragraph 118 of the NPPF – that development likely to harm a Site of Special Scientific Interest should not normally be permitted. Natural England thought the disused railway line itself satisfied the criteria for notification as a Site of Special Scientific Interest. The reason why this land had not yet become a Site of Special Scientific Interest was, essentially, "bureaucratic". It ought therefore to have been considered by the County Council as being, in effect, a Site of Special Scientific Interest to which the policy should have been applied, and the development should therefore not have been permitted. The planning officers' comment, in paragraph 256 of their report, that consultation on the designation was "not currently being progressed" was misleading. Anyway, the committee had not grasped either the intrinsic ecological value of the disused railway line or its function as a link in the network of Sites of Special Scientific Interest around it. Natural England had objected because of the likely effect of the development on this link. To imagine that this would not be harmful was perverse, given the amount of habitat that was going to be damaged or destroyed.
Submissions for the Council and for FCC
(1) This was an undisguised attack on expert assessments made in documents submitted to the County Council by FCC, and accepted both by it and by Natural England. The court was being invited to gauge the likely impacts of the development on butterflies and the likely success of the proposed translocation of habitat. Mr Dove was attempting to re-argue an objection that did not prevail before the planning decision-maker when considered on its merits. This sort of argument has no place in a claim for judicial review. It was hardly perverse for the County Council's committee to rely on its planning officers' judgment and its own expert's advice on ecological matters and on the carefully considered views of Natural England. The claimant might disagree with Natural England's conclusion. But the County Council was entitled to accept it without exposing itself to the charge of irrationality.
(2) The County Council did not ignore or misapply government policy in paragraph 118 of the NPPF. The premise here was that the development was going to cause "significant harm". The claimant's argument depended, therefore, on the County Council having been not merely mistaken but irrational in accepting its officers' advice and Natural England's – that, with the proposed measures for habitat translocation and creation in place, the effects on invertebrates, including butterflies, would not be significant. This was a hopeless submission. The principles in paragraph 118 of the NPPF were correctly applied by the committee. The possibility of an alternative route using existing roads was properly considered. In their reports the officers explored mitigation and compensation in depth. These were all matters of expert planning and ecological judgment. There was no error of law.
(3) The officers' report did not mislead members about the possibility of the disused railway line being designated a Site of Special Scientific Interest. The position was accurately set out. Natural England letter's withdrawing its objection had said nothing about the proposed access road being considered for designation as a Site of Special Scientific interest, nor had it suggested that the decision on the application for planning permission ought to be deferred until the possibility of designation had been considered. But in their report the officers identified and considered the value of the disused railway for butterflies. They did not overlook its function as a link between the Sites of Special Scientific Interest. They considered this explicitly (see paragraphs 256 and 257 of their report).
Issue (3): Reasons
"Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. …".
Submissions for the claimant
(1) The County Council's decision notice of 27 July 2012 is clearly defective. It does little more than list the development plan policies relevant to the application. It says nothing about the nature conservation issues arsing under Habitats Directive and the 2010 regulations. It does not explain how the interests of protected species had been taken into account in the County Council's decision-making. It does not say how the proposals comply with policies relating to nature conservation. It does not enable those who are concerned about the effects the development will have on wildlife to understand why planning permission was granted.
(2) If a local planning authority has accepted its officer's recommendation to grant permission, the committee report is relevant when the adequacy of its summary reasons is being considered. In this case, however, the officers' report was itself deficient. It did not include any analysis of the proposals against the tests in paragraph 118 of the NPPF, or any similar policy tests in the development plan or previous national policy. The analysis relating to European Protected Species was also flawed.
(3) The public has been severely prejudiced by the failure to provide adequate reasons. It was impossible to understand how the relevant national and development plan policies had been applied, and, therefore, how it could be said in the summary reasons that the development was "generally in compliance with" the development plan.
Submissions for the Council and for FCC
(1) The reasons given in the decision notice are entirely adequate. The County Council did not have to list the relevant parts of the Habitats Directive and the 2010 regulations. Article 31 of the Development Management Procedure Order requires a summary of the relevant policies in the development plan, not a list of relevant European legislation. The County Council also had to set out a summary of its reasons for the grant of permission, not full reasons as to why each objection was overcome.
(2) In this case the County Council's committee had the benefit of a very detailed report from its officers, a further report to bring that one up to date, and oral advice from them as well. The members accepted the recommendation the officers made. The application was found to be in accordance with the development plan, apart from policies relating to listed buildings. In the circumstances the summary reasons stated in the decision notice were plainly sufficient, and up to the standard required (see Siraj ).