QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| Shadwell Estates Ltd
|- and -
|Breckland District Council
|- and -
|Pigeon (Thetford) Ltd
John Hobson QC and Ned Helme (instructed by Breckland District Council Legal Department) for the Defendant
James Maurici (instructed by Berwin Leighton Paisner LLP) for the Interested Party
Hearing dates: 26 and 27 November 2012
Crown Copyright ©
Mr Justice Beatson :
(1) The Council failed to carry out an adequate sustainability appraisal and strategic environmental assessment in compliance with section 19(5)(b) of the 2004 Act, and various provisions of the Environmental Assessment of Plans and Programmes Regulations 2004 SI 2004/1633 ("the EAPPR 2004").
(2) The Inspector who conducted the examination of the TAAP erred in finding that the TAAP satisfied the requirements of section 19 of the 2004 Act and that it was "sound". Accordingly, the requirements of section 20(5) of the 2004 Act were not met.
(3) The data in the Council's Habitats Regulations assessment did not take account of the finding that built development could adversely affect the nesting density of stone-curlews up to a distance of 2,500 metres, and was incomplete in excluding the Kilverstone estate after 2000 and only including data for other land around Thetford between 1988 and 2006. The result was that the assessment breached Regulation 61 of the Habitats Regulations 2010.
Shadwell also contended (see, for example, skeleton argument, paragraphs 5 and 61) that it was deprived of a proper opportunity to test the TAAP at the examination in public and to advance alternative proposals because its objections to the soundness of the TAAP were dismissed as based on anecdotal evidence.
II. The Legislative framework
(i) The preparation of development plan documents
"(a) whether it satisfies the requirements of sections 19 and 24(1) [the regional strategy], regulations under section 17(7) [in relation to the form and content of local development documents] and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty [to co-operate in relation to planning of sustainable development] imposed on the authority by section 33A in relation to its preparation."
(ii) Environmental assessment
"12. — Preparation of environmental report
(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.
(2) The report shall identify, describe and evaluate the likely significant effects on the environment of–
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of–
(a) current knowledge and methods of assessment;
(b) the contents and level of detail in the plan or programme;
(c) the stage of the plan or programme in the decision-making process; and
(d) the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
(4) Information referred to in Schedule 2 may be provided by reference to relevant information obtained at other levels of decision-making or through other [EU] legislation.
(5) When deciding on the scope and level of detail of the information that must be included in the report, the responsible authority shall consult the consultation bodies.
(6) Where a consultation body wishes to respond to a consultation under paragraph (5), it shall do so within the period of 5 weeks beginning with the date on which it receives the responsible authority's invitation to engage in the consultation."
"1 An outline of the contents and main objectives of the plan or programme, and of its relationship (if any) with other relevant plans and programmes.
2 The relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme.
3 The environmental characteristics of areas likely to be significantly affected.
4 Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Council Directive 79/409/EEC on the conservation of wild birds and the Habitats Directive.
5 The environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation.
6 The likely significant effects on the environment, including short, medium and long-term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues including—
(l) landscape; and
(m) the inter-relationship between the issues referred to in sub-paragraphs (a) to (l).
7 The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.
8 An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties encountered in compiling the required information.
9 A description of the measures envisaged concerning monitoring in accordance with regulation 17.
10 A non-technical summary of the information provided under paragraphs 1 to 9."
(iii) The Habitats Regulations 2010
"(1) A competent authority [here the Council], 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 ... (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 site's conservation objectives.
(2) A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.
(3) The competent authority must 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 specify.
(4) They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
Regulation 5 of the Habitats Regulations 2010 defines the appropriate nature conservation body which must be consulted under regulation 61(3). In this case, it is Natural England.
(iv) Challenges to development plan documents
"Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body."
III. The factual and regulatory background
(i) 2007 – 2008
(ii) The Habitats Regulations Assessment
(iii) The evidence considered for the Core Strategy
(iv) The adopted Core Strategy
"At Thetford, mechanisms will be set out in an area action plan [this is the TAAP] for monitoring and managing the release of land to 2021 to meet RSS requirements, including phasing and any sequential release of land. The [TAAP] will also address the circumstances under which reserve land to 2026 would be released at Thetford. The broad location for the sustainable extension at Thetford will be land to the north-east of the town, within the boundary of the A11. Beyond 2021, new housing growth in Thetford will take place on identified sites within the town that may include deliverable brownfield land. The precise land areas and mix of uses will be set out in the [TAAP], utilising evidence basework undertaken in respect of the town's Growth Point Status. The town is also constrained to the east, and north of the A11, due to protected European habitats and species. The Council will require demonstration, through subsequent Habitats Regulations assessments, that proposed development to the north-east of Thetford will not result in harm to European habitats or species."
"The Council will require that an appropriate assessment is undertaken of all proposals for development that are likely to have a significant effect on the Breckland Special Protection Area (SPA) and will only permit development that will not adversely affect the integrity of the SPA. In applying this policy, the Council has defined a buffer zone indicated in orange…that extends 1,500m from the edge of those parts of the SPA that support or are capable of supporting stone-curlews, within which:-
b. permission may be granted for development provided it is demonstrated by an appropriate assessment the development will not affect the integrity of the SPA.
In other locations, indicated in blue…, the Council will apply the policy set out above to afford protection to other land supporting the qualifying features of the SPA… ."
"urgent work, including careful monitoring, is essential to provide a better understanding of the interactions between Stone-Curlews and human settlement, and to develop practical and effective mitigation methods to complement the modifications to the policy suggested by the Council. Without such steps we accept, as Natural England makes clear, that it will remain extremely difficult to overcome the presumption against development": paragraph 3.224.
(v) The recommended "urgent" work
(vi) The TAAP
"… no new empirical evidence presented. Infrastructure requirements not yet fully understood for south-east option. Preliminary work indicates higher costs and environmental impacts."
"There are a high number of important European designated wildlife sites around Thetford. The [TAAP] affords a high degree of protection to areas of special environmental importance. Therefore, this effect is highly significant to the DPD.
Because biodiversity is an important issue to Thetford and its surroundings, these are highly significant effects. Separate to the requirements of the SA/SEA an appropriate assessment of the DPD under the Habitats Regulations has been undertaken at all the statutory stages of document production. The outcomes of the submission HRA document are presented in the literature review and confirm that the plan in itself will not have a likely significant effect on protected European habitats and qualifying features."
(1) The LSC Report's conclusions were not "sufficiently well founded, particularly in relation to the likely impact of development on breeding protected species, to justify overriding the protection afforded by the 1,500m buffer" (paragraph 27);
(2) The LSC Report's conclusions were not sufficiently robust to set aside the "comprehensive [Footprint Ecology Study] that has been found to be sound through examination of both the [Core Strategy] and the Site Specific DPDs" (paragraph 28);
(3) Natural England continued to support the initiatives pursued by the Council to protect the integrity of the SPA and the precautionary approach of the Council to locate development beyond the 1,500m buffer remained justified (paragraph 28);
(4) The single direction of growth to the north of Thetford remained justified (paragraph 29);
(5) Contrary to SECL's case, different approaches had not been taken towards stone-curlew nesting evidence on sites to the north as compared with sites to the south (paragraph 30);
(6) Notwithstanding Shadwell's criticisms, the Inspector stated: "I am satisfied that the SA was carried out in accordance with the Strategic Environmental Directive and the reasons for not pursuing development to the south-east of the town are explained in the SA. The SA is sound and the evidence base as a whole is proportionate and meets the requirements of the NPPF" (paragraph 30).
(i) The process and the role of the Court
"41…. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations ... but they are likely to be few and far between."
(ii) Ground 1: Did the Council's sustainability appraisal and strategic environmental assessment comply with section 19(5)(b) of the 2004 Act and the 2004 Regulations?
(iii) Ground 2: Did the Inspector breach section 20(5) of the 2004 Act in concluding that the TAAP satisfied the requirements of section 19 of the 2004 Act and was "sound"?
(iv) Ground 3: Did the Council's Habitats Regulations assessment breach Regulation 61 of the Habitats Regulations 2010?