England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester M60 9DJ
		28/02/2014

Mr Justice Stewart:

Introduction

1. On 26 June 2013 Judge Pelling QC granted permission to the Claimants to bring judicial review in respect of the grant by Wyre Borough Council ("the Council") of planning permission on 13 November 2012.
2. The applicant for the planning permission was Mrs E A Nickson, the First Interested Party. The Second Interested Party is the intended RSL for the development.
3. The site is land at Hall Lane, Great Eccleston, Preston. The Claimants are residents in the village. They objected to the application for planning permission. There is no issue about their standing in the case.
4. The permission is for the "the erection of 18 dwellings (comprising 4 two bed apartments, 9 two bed houses and 5 three bed houses) together with associated infrastructure…"
5. The Council had previously granted planning permission for the development in a decision that was issued on 25 April 2012. The Claimants made a claim for judicial review of that decision and it was revoked by the Council. The present application was made on 11 May 2012. On 3 October 2012 there was a resolution to grant planning permission which was then the subject of the decision notice on 13 November 2012.
6. The ground which I have to determine relates to protected species, namely bats, and is based on the Claimants' contention:

(a) That there has been a breach of the Council's statutory duty.

(b) That the LPA failed to take into account a material consideration, namely nature conservation interests.

(c) The reasoning of the Council was inadequate in its treatment of the protected species issue and consultation responses.

Relevant Legislation and Policy

7. This is set out in full in the Appendix to this judgment. It comprises:

•    Section 70 of the Town and Country Planning Act 1990 ("the 1990 Act").

• Section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act").

• Article 31 of the Town and Country Planning (Development Management) Procedure (England) Order 2010 ("the DMPO").

• Regulation 9(3) of the Conservation of Habitat and Species Regulations 2010 ("the 2010 Regulations").

• Articles 12 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive").^[1]

• Paragraphs 98, 99 and 116 of the Biodiversity and Geological Conservation: Circular 06/205 ("the Circular").

Basic Legal Principles from Case Law

8. Applications for planning permission and appeals require the Local Planning Authority to "have regard to …the provisions of the Development Plan, so far as material to the application…(and)…any other material considerations" (the 1990 Act, sections 70 and 79).
9. By section 38(6) of the 2004 Act "the determination must be made in accordance with the plan unless material considerations indicate otherwise".
10. As to Policy^[2]:

(i) Policy statements should be interpreted objectively in accordance with the language read in its proper context and according to what is actually written, rather than what may have been intended.

(ii) Policy statements should not be construed as if they were statutory or contractual provisions.

11. Matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. The weight to be attributed to various material considerations in exercising his statutory power is a matter for the discretion of the decision maker.^[3] In the Newsmith case Sullivan J 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. …."

12. The Court can interfere if the decision maker has taken into account a consideration which is immaterial or failed to take account of a consideration which is material (per Lord Denning MR Ashbridge v Minister of Housing [1965] 1 WLR 1320 at 1326);
13. The decision-maker ought to take into account a matter which "might" cause him to reach a different conclusion on the matter i.e. where there is a real possibility that he would reach a different conclusion if he did take that consideration into account (per Glidewell LJ in Bolton MBC v SOSE (1990) 61 P&CR 343;
14. In Oxton Farms v Selby District Council [1997] EWCA Civ 4004, Judge LJ held:

"In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

15. As to the reasons for a decision Lord Brown of Eaton-under-Heywood said^[4]:

"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 may 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."

The Survey and Assessment of the Roadside Hedgerow (May 2010)

16. This document was submitted by Regenda Group (IP2). The following paragraphs are of importance:

(i) 4.2.18 "No other woody vegetation (ie. trees) within the hedgerow is suitable for roosting bats."

(ii) 5.1.6 "It is assessed that there is potential for the ivy cover on the associated mature trees to provide suitable habitat for night roosting/perching of bats (whilst feeding) or for daytime roosting bats in the summer months. In addition, three of the five mature ash trees display moderate/high potential habitat value for daytime roosting bats. Further surveys are required to ascertain whether or not such trees support roosting bats and consideration of bat species will be necessary as indicated in section 6 of this report."

(iii) 6.1.1. "It is identified that there is moderate/high potential for recurrence of roosting bats at trees FE2, FE3 and FE4. On this basis, to comply with current best practice as set out in the "Bat Surveys – Good Practice Guidelines" (Bat Conservation Trust 2007) it is recommended that a further survey is undertaken in the form of :

A nocturnal survey (dawn or dusk, as determined by the licensed bat worker responsible for the daylight inspection);

and

An "off the ground" inspection of the roost holes in the tree that this is proposed to be felled (FE3) undertaken by a licensed bat worker with ladders and/or climbing gear."

and

(iv) Paragraph 6.1.4 "The outcome of the survey would then enable an ecologist to provide advice on any implications and/or mitigation and/or compensation requirements. If a bat roost is found in a location where it would be at risk of disturbance of loss then this will need to be covered under the auspices of a European Protected Species licence."

(v) Paragraph 6.1.5 "Even if further bat survey work does not reveal evidence of a roost there will remain potential for temporary use of potential roost features associated with tree FE3."

(vi) Required actions:…"Further bat survey work is required to conclusively determine whether or not the trees support any roosting bats and whether or not mitigation and compensation measures are required. (notably, under the proposal only one mature ash tree will need to be felled). Notwithstanding the result of further bat survey(s), best – practice measures should be applied for the protection of bats so the tree to be felled should only be removed in winter months (after the first hard frost) and in sections…

Replacement planting of a native species broad leaved hedgerow is strongly recommended. A possible location is along the southern boundary of the site, which (in the long term) would actually result in a greater length of hedgerow and potentially greater plant species diversity within it (provided a recommended ratio of native wood species is planted).

It is assessed that provided such measures are implemented (including further survey and guidance in respect of bats) the proposed work, which entails removal of the hedgerow and the one mature tree, can be achieved in full accord with the applicable wildlife legislation and planning policies."

(vii) It must be noted that Drawing Figure 1 appended to the report showed a 65m section of 3 foot high hedgerow was to be removed.

Dawn Bat Survey and Assessment (June 2010) "The Bat Report"

17.1 The Bat Report is dated 26 June 2010 and was submitted by IP2. It contained the following relevant paragraphs in its Conclusions and Guidance section:-

"4.1.1 The surveyed area is currently used by at least one species of bat for foraging and commuting, with the possibility of roosting in the large ash tree labelled FE2."^[5]

• 4.2.4 "If planning permission is granted then the hedgerow, shrubs and tree FE3 will be removed. Although there is no confirmed bat roost, thus no requirement for EPS licensing, it will still be important to apply timing constraints and tree felling precautions to ensure compliance with the wildlife legislation."

17.2 The Bat Report strongly recommended that the actions described in paragraphs 4.25 to 4.27 of the report were applied. In summary, these actions were:

(i) protect breeding birds by restricting the timing of the shrub and tree removal to outside the breeding season;

(ii) protect roots and canopies of retained matured trees in accordance with BS5837;

(iii) protect bats by implementing several actions in relation to the felling of tree FE3 (not least because of the high potential or roosting occurrence in the adjacent tree FE2);

(iv) restrict the time of the year for FE3 felling to September or early October, or alternatively early April;

(v) hand remove ivy cover from FE3 prior to felling and in the presence of a suitable licensed bat worker;

(vi) get a tree felling survey of FE3 carried out by a suitably licensed bat worker and take professional advice on whether any further precautions are required based on the results of that survey."

The County Council Ecologist's Report 3 June 2011

17. Dr Sarah Manchester is the Lancashire County Council ecologist. Her report was provided under cover of letter of 3 June 2011. I shall refer to it as the "Ecologist's Report". Dr Manchester had received the Roadside Hedgerow Survey and the Bat Report. Lancashire County Council is a consultee on ecological matters.
18. The following passages are of importance:

(a) "Recommendations:

Prior to the determination of the application, further information should be submitted:

To clarify potential impacts from protected and/or priority amphibians. If the proposals would result in impacts on amphibians or their habitat, proposals for mitigation and compensation should also be submitted for approval;

To demonstrate that adequate mitigation and compensation for the loss of Habitat of Principal Importance (hedgerow), and which is of medium to high value for foraging and commuting bats and nesting birds can be delivered as part of the proposals. Ideally this would include the retention of a significant length of the existing roadside hedge in addition to the creation of a new hedgerow elsewhere in the development." (my underlining)

(b) "Legislation and Planning Policy

…………………..

Further information is required in order to demonstrate that the proposed development would comply with the above policies and guidance

……………….

In order to meet the requirements the applicant would need to demonstrate that development would be located and designed in such a way that would avoid ecological impacts and that mitigation/compensation measures were sufficient to fully offset all unavoidable ecological impacts and maintain and enhance biodiversity. It should also be demonstrated that habitat connectivity would be maintained and enhanced. In addition to mitigating and compensating for unavoidable ecological impacts, the above policies and guidance require enhancement of the quantity and quality of biodiversity and habitat; …………..

Although the applicant has submitted some information regarding the current biodiversity value of the application area (hedgerows, trees, bats), this does not include a thorough assessment of the ecological interest on the site. Further survey/information is necessary in order to inform the need for mitigation/compesation"

(c) "European Protected Species: Bats

It appears that the proposal would result in the loss of the entire roadside hedgerow and a mature ash tree. Although no bat roosts were identified, trees do have potential to be used by roosting bats and the hedgerow has been valued as of medium to high importance for bat populations locally. The loss of this hedgerow could thus result in detrimental impacts on bats in this area.

Planning policy requires that impacts on biodiversity are avoided or, if unavoidable, that impacts are adequately mitigated and compensated. It is not clear that this development has been designed to avoid biodiversity impacts, nor is it clear that mitigation and compensation for impacts on a bat foraging and commuting habitat would be delivered as part of the development proposals. Further information is therefore necessary to demonstrate the high value bat habitat would be maintained and/or adequately compensated.

Precautionary measures to ensure that the hedgerow and tree removal do not result in impacts on nesting birds or bats/bat roosts are included in paragraphs 4.25 – 4.27 of the report of "Hall Road, Great Eccleston. Report of Dawn Bat Survey and Assessment" (ERAP, June 2010). If Wyre Borough Council is minded to approve this application, it will be appropriate to ensure that these recommendations are implemented by planning condition."

Analysis of the Roadside Hedgerow Report, Bat Report and Ecologist's Report

19. It is sensible to pause there in the chronology and to carry out some summary analysis of the import of these three reports.
20. The ecologist's report recommendation^[6] requested further information in relation to amphibians. In relation to bats (and nesting birds) it requested further information as to adequate mitigation and compensation for loss of hedgerow for "foraging and commuting bats…"
21. Reading the relevant sections of the report as a whole and in particular the recommendation, Dr Manchester was concerned about:

(i) Amphibians.

(ii) What she perceived to be the removal of the entire roadside hedgerow which was of medium to high value for foraging and commuting bats and birds, ideally including retention of the significant length of the hedgerow and the creation of a new hedgerow. That is the only matter on which her recommendation required further information. In addition, if the Defendant was minded to approve the application, she recommended conditions.

22. It is common ground that thereafter IP2 submitted a report on amphibians (August 2011). It is also common ground that no further report was provided in respect of bats. Dr Manchester responded to the amphibian report in an undated second consultation response in which she declared herself satisfied as to the proposals.

Subsequent Chronology

23. The first committee report went before members of the planning committee on 7 September 2011. They resolved to grant the first planning permission. The committee report states:

Wildlife Issues

"9.16 A Bat Survey and a Hedgerows Survey/Report have been submitted to support the application. A further report/information was request by LCC Ecology and has been commented upon by the County Ecologist. A survey of the hedgerow indicated that they are species poor and are not classified as important under the Hedgerow Regulations. However, ideally they should be retained and protected. Where removal is unavoidable (i.e. to facilitate the access point), removal should be timed to avoid nesting season and new linear planting using native stock can enhance the landscape and biodiversity (especially on the Southern boundary where a new hedge is to be planted).

9.17 No objections have been raised by the LCC Ecologist, subject to conditions (see Consultee Response section above). To ensure adequate protection of the TPO'd trees there would be a condition regarding safety/protection fencing around the retained trees. In order to enhance biodiversity of the site and to ensure no net loss of hedgerows and trees, adequate native species planting is required in any replacement hedgerow and trees. Any felling and clearance works are to be avoided between March and July to protect nesting birds."

24. The reference in paragraph 9.17 to the "Consultee Response section above" is a reference to paragraph 6.5 which reads:

"LCC ECOLOGY – Request conditions regarding no tree felling in nesting bird season, protection of bats measures identified in ecology report to be implemented, no site clearance until a landscape scheme has been submitted and approved (in consultation with specialist advisors), and protection of trees and hedgerows in accordance with BS5837. Further to my earlier consultation response, I have now received additional information to address the potential presence of amphibians and particularly great crested newts…I can confirm that I am satisfied that the proposals are unlikely to result in impacts upon great crested newts or their habitat and, provided the recommendations of section 4.0 of the report are implemented by an appropriately worded planning condition, impacts on common toads should also be avoided."

25. By resolution of 7 September 2011 delegated authority was granted to the Head of the Planning Services of the Council (Mr David Thow). His first decision was then dated 25 April 2012. This was a decision which was the subject of the first judicial review made by a claim form dated 22 June 2012. It was based on 6 grounds for which permission was granted. The first grant was then revoked by the council.
26. As regards the renewed application, the second committee report dated 3 October 2012 is in identical terms as the first report as to paragraph 6.5. The following paragraphs are also important:^[7]

"Impact of development on character in the area

9.24…the existing hedge along the boundary of Hall Lane would be retained except for the gap to be created for the access road (approximately 14 metres). One tree would be removed for the same reasons. The hedge would be reduced in height to one metre high for the rest of the frontage on to Hall Lane. A new southern boundary hedge would be secured via a condition should approval be given. This is also part mitigation for the length of hedge to be removed at the access point. Other hedges along the boundary surrounding the site would be retained. Any new hedgerow would be of native species…other hedge boundaries would be retained, although the frontage one to Hall Lane would be reduced in height. The proposal will clearly have an effect on the area, but the impact is minimised by retention of hedges and the new hedge to be planted to the south of the site.

Wildlife Issues

9.25 A Bat Survey and a Hedgerow Survey/Report have been submitted to support the application. Along with further details regarding the impact on owls. A survey of the hedgerow indicated that they are species poor and are not classified as important under the Hedgerow Regulations. However, ideally they should be retained and protected. Where removal is unavoidable (i.e. to facilitate the access point), removal should be timed to avoid nesting season and new linear planting using native stock can enhance the landscape and biodiversity (especially on the Southern boundary where a new hedge is to be planted).^[8]

9.26 No objections have been have been raised by the LCC Ecologist, subject to conditions (see Consultee Response section above). To ensure adequate protection of the TPO'd trees there would be a condition regarding safety/protection fencing around the retained trees. In order to enhance biodiversity of the site and to ensure no net loss of hedgerows and trees, adequate native species planting is required in any replacement hedgerow and trees. Any felling and clearance works are to be avoided between March and July to protect nesting birds. The proposal is not detrimental to the ecology of the area and complies with requirements of the National Planning Policy Framework and Habitat Regulations."

27. There had been a third LCC consultation response from Dr Manchester dated 5 September 2012 which stated:

"I commented on the planning application 11/00353/FULMAJ on 03/06/11 (requesting further information) and 19/08/11 (indicating that sufficient information had been submitted, and mitigation and compensation for impacts on biodiversity could be addressed by a planning condition). "

The applicant has not submitted any additional ecological information in support of the current application, and I am not aware of any significant changes in the biodiversity value of the application area. Therefore my comments in respect of impacts on biodiversity remain largely unchanged from those made previously in respect of the previous application (and this response should be read in conjunction with my response to application 11/00353/FULMAJ)."^[9]

Discussion:

28. The central submission of the Claimants is that Dr Manchester requested further information on bats before a judgment could be reached in compliance with the relevant legal tests. No further information having been provided, and Dr Manchester not having changed her opinion regarding bats in either the second or third consultation response, the committee report is said significantly to mislead the planning committee in respect of the actual position of Dr Manchester i.e. that further information on the impact on bats was required to be submitted prior to determination. It is further said that the Head of Planning failed to explain why Dr Manchester was incorrect and that in fact adequate information had been submitted, in particular as to the amount of hedgerow which was actually required to be removed and the impact of such a removal on bats.
29. Did the planning committee report misrepresent Dr Manchester's consultation responses? It is correct that in her first response second recommendation, she said that further information should be submitted about hedgerows "prior to the determination of the application".^[10] She does not say that further information should be submitted to her. At that time the proposal would have resulted in the loss of the entire roadside hedgerow.^[11] Her recommendation was that the further information had an ideal resolution, namely including the retention of a significant length of existing roadside hedge in addition to the creation of a new hedgerow elsewhere in the development.
30. How does the Defendant respond to the Claimants' criticism? In summary its case is this:

(i) The second planning application was not the same as the first. Part of the document submitted in support of the second application was:

(a) A report from Envirotech dated 26 March 2012. This concerned the hedge in respect of its possible use for nesting birds. It says "the area inspected included approximately 6m of hedge to be removed along with a length of at least 5m either side of this."

(b) A landscape report dated February 2012 which in paragraph 2.5 dealt with retention of hedges and trees and offsetting the loss of existing hedgerows and compensating for the loss of mature trees on the east boundary etc.^[12]

(ii) Paragraph 9.24 of the Officer's report^[13] also refers to a much reduced removal of hedgerow on the eastern boundary i.e. on the road. This paragraph refers to the removal of "approximately 14 metres". It also says "the hedge will also be reduced in height to 1 metre high for the rest of the frontage onto Hall Lane."

(iii) Therefore the planning authority were told how much hedge would be removed and, when they considered the Officer's report, that report synthesised the Ecologist's responses and the new information in support of the second planning application.

(iv) The Planning Officer was therefore justified in saying at paragraph 9.26 of his report "the proposal is not detrimental to the ecology of the area and complies with the requirement of the National Planning Policy Framework and Habitat Regulation." This was because the Ecologist had in her first response set out an ideal situation which was now the reality.^[14]

31. It is unfortunate that there is some discrepancy between the 6 metres referred to in the Envirotech report and the 14 metres referred to in paragraph 9.24 of the Officer's report. Also it is not clear why in the Officer's report the hedge was to be reduced to 1 metre in height or for what reason. Putting those matters on one side, I do not accept that what went before the planning committee was, in ecological terms, "the retention of a significant length of the existing roadside hedge". The reduction was not merely in the length but also ? of the height. The significance of the hedge was foraging and commuting (this is common ground), but there is nothing from which I can infer that the height of the hedge is not relevant. Whilst it might have been possible, if the height had been unaffected, to say that "a significant length of the existing roadside hedge" was to be retained, the combination of the reduction in height and length means that the planning committee and the court simply do not know the impact in ecological terms of the reduction in hedgerow.
32. This in my judgment is the critical point and it undermines the Defendant's central plank of its resistance to the claim. Putting the matter in its legal context the position is as follows:

(i) The Defendant has a statutory duty under regulation 9(3) of the 2010 Regulations to have regard to the requirements of the Habitats Directive. Paragraph 99 of the Circular states:-

"It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before planning permission is granted…"

I accept that the Defendant established the presence or otherwise of protected species, namely the bats. However I do not accept that they established "the extent that they may be affected by the proposed development." As Lord Brown said in R (Morge) v Hampshire County Council^[15] at paragraph 19 "whilst it is true that the word "significant" is omitted from article 12(1)(b)….that cannot preclude an assessment of the nature and extent of the negative impact of the activity in question upon the species and, ultimately, a judgment as to whether that is sufficient to constitute a "disturbance" of the species." I bear in mind fully what Baroness Hale said at paragraph 36, namely that the court should not impose too demanding a standard upon officers' reports, but she also said that the reports "obviously have to be clear and full enough to enable them (i.e. the planning authority) to understand the issues and make up their minds within the limits that the law allows them." The Defendant, in my judgment, did not do that here.

(ii) Mr Barratt, Counsel for the Defendant, was at pains to point out the importance of the conditions attached to the planning permission. He submitted that the Defendant was entitled to take a layered approach i.e. compliance with the Circular and the 2010 Regulations and then conditions. I accept that they were entitled to take a layered approach. The problem is they did not comply with the Circular and the Regulations. If that is the case then conditions do not assist because:

(a) Paragraph 99 of the Circular makes this clear.

(b) With specific reference to the height of the hedge, although condition 20 is very wide ranging,^[16] this cannot be a sufficient answer to the lack of a proper assessment of the nature and extent of the negative impact upon the protected species.

(c) The second recommendation of the Ecologist's report has not been complied with.^[17]

33. In the Morge case the Supreme Court made it clear that it is the function of Natural England to enforce compliance with the Habitats Directive by prosecuting those who commit offences contrary to its provision. It is not the function of the planning authority to police offences under Article 12 of the Habitats Directive. Where Natural England express themselves satisfied that a proposed development will be compliant with Article 12, the planning authority are entitled to presume that it is so.^[18] In the present case Natural England did report. Their report is dated 31 August 2012. They said:

"Bats

…working through the flowchart we reached box (xvi) which advises the authority that permission may be granted subject to appropriate conditions including a detailed mitigation and monitoring strategy for bats.

We advise that the recommendations made by the Ecologist at section 4.2 of the Bats Survey Report are carried out as part of the development and recommend that a sympathetic lighting scheme to be secured as part of the development.

…

On the basis of the information available to us with the planning application, Natural England is broadly satisfied that the mitigation proposals, if implemented, are sufficient to avoid adverse impacts on the local population of bats…It is for the local planning authority to establish whether the proposed development is likely to offend against Article 12(1) of the Habitats Directive. If this is the case then the planning authority should consider whether the proposal would be likely to be granted a licence."

34. In my judgment the report from Natural England does not provide an answer to the Defendant's failures because

(i) There was no mention of the Natural England response in section 6 of the committee report or in the committee report at all. There is therefore no evidence that the planning committee was aware of the position of Natural England. The matter however goes further. Mr Thow, the Head of Planning Services, provided a witness statement dated 9 July 2013. Of course this witness statement is after the event. Nevertheless, if he had taken into account the Natural England report, then one would have expected him to make reference to it in his witness statement, which is a detailed justification of his report and the planning committee's decision. Finally there was no reference to the Natural England report even in the Defendants defence to these proceedings. It is not enough for the Defendant to say that Natural England did not object and that the Planning Officer must have had the Natural England report in mind.

(ii) In any event Natural England required not only mitigation but a "monitoring strategy for bats." I do not accept that condition 20, wide ranging though it is, complies with this.

35. The Defendant submits that even if they are in breach, the content of the Natural England report is a factor which the court should take into account in deciding whether, in its discretion, to quash the decision. I have weighed this very carefully. I have come to the conclusion that I should nevertheless quash the decision. Not only is there no "monitoring strategy for bats", the lack of basic compliance with the regulations and the Circular do not enable me to be satisfied that the failure has not affected the outcome and the decision would have been the same in any event.^[19]

Conclusion

36. I therefore determine that the Defendants' decision in the Decision Notice dated 30 November 2012 should be quashed as:

(a) The Officer's report significantly misled the planning committee on the position of the County Ecologist.

(b) The Defendant did not engage with the requirements of the Regulations, the Habitats Directive and the Circular.

Appendix

Town and Country Planning Act 1990 c. 8 Part III CONTROL OVER DEVELOPMENT Determination of applications

70.— Determination of applications: general considerations.

(1) Where an application is made to a local planning authority for planning permission—

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard [to—]

[

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

(b) any local finance considerations, so far as material to the application, and

(c) any other material considerations.

……………

Planning and Compulsory ?Purchase ?Act ?2004 c. 5

Part 3 DEVELOPMENT Development plan

38 Development plan

(1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5).

………………..

(3) For the purposes of any other area in England the development plan is–

(a) the regional strategy for the region in which the area is situated ………. and

(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area and

(c) the neighbourhood development plans which have been made in relation to that area.

……………..

(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

………………………..

Chapter 2 The Town and Country Planning (Development Management Procedure) (England) Order 2010

Chapter 3

Written notice of decision or determination relating to a planning application

This sectionnoteType=Explanatory Memorandum has no associated

31.  (1)  When the local planning authority give notice of a decision or determination on an application for planning permission ……………….—

(a)where planning permission is granted, the notice shall—

(i)include a summary of their reasons for the grant of permission;

(ii)include a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and

(iii)where the permission is granted subject to conditions, state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision;

(b)where planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision;

Chapter 4

Chapter 5 The Conservation of Habitats and Species Regulations 2010

Exercise of functions in accordance with the Habitats Directive

This sectionnoteType=Explanatory Memorandum has no associated

9. (3) Without prejudice to the preceding provisions, a competent authority, in exercising any of their functions, must have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions.

……………….

COUNCIL DIRECTIVE 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora

………………………………

Protection of species Article 12

1.  Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.

2.  For these species, Member States shall prohibit the keeping, transport and sale or exchange, and offering for sale or exchange, of specimens taken from the wild, except for those taken legally before this Directive is implemented.

3.  The prohibition referred to in paragraph 1 (a) and (b) and paragraph 2 shall apply to all stages of life of the animals to which this Article applies.

4.  Member States shall establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV (a). In the light of the information gathered, Member States shall take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.

………………………….

Article 16

1.  Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):

(a) in the interest of protecting wild fauna and flora and conserving natural habitats;

(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;

(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;

(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;

(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

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Chapter 6 Biodiversity and geological conservation: circular 06/2005

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PART IV Conservation of Species Protected by Law

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98. The presence of a protected species is a material consideration when a planning authority is considering a development proposal that, if carried out, would be likely to result in harm to the species or its habitat……….

For European protected species (i.e. those species protected under the Habitats Regulations) further strict provisions apply, as explained below, to which planning authorities must have regard.

99. It is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decisions. The need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances, with the result that the surveys are carried out after planning permission has been granted…

116. When dealing with cases where a European protected species may be affected, a planning authority …has a statutory duty under regulation 3(4)[now Reg 9(3)] to have regard to the requirements of the Habitats Directive in the exercise of its functions. So the Directive's provisions are clearly relevant in reaching planning decisions, and these should be made in a manner which takes them fully into account. The Directive's requirements include a strict system of protection for European protected species prohibiting deliberate killing catching or disturbing of species and damage to or destruction of their breeding sites or resting places. Derogations from this strict protection are only allowed in certain limited circumstances and subject to certain tests being met. Planning authorities should give due weight to the presence of a European protected species on a development site to reflect these requirements, in reaching planning decisions and this may potentially justify a refusal of planning permission.

Note 1   Article 12 of the 1992 Directive requires Member States to take requisite measures to establish a system of strict protection for animal species listed (including pipistrelle bats) prohibiting “(b) deliberate disturbance of these species….” Article 12 is also a material consideration under section 70(2)(c) of the 1990 Act. (The Circular paragraph 98).    [Back]

Note 2   See Tesco Stores Limited v Dundee CC [2012] UKSC 13; [2012] 2P and CR162 para 17, 18 and 19.    [Back]

Note 3   Tesco v Secretary of State [1995] 1WLR 759, 770;Newsmith Stainless Limited v Secretary of State for the Environment and Regions ETR [2001] EWHC Admin 74.    [Back]

Note 4   South Bucks DC v Porter (No 2) [2004] 1WLR 1953     [Back]

Note 5   (a tree that was not proposed to be felled).    [Back]

Note 6   Paragraph 19(a) above.    [Back]

Note 7   Paragraphs 9.25 and 9.26 are very similar, but not identical, to paragraphs 9.16 and 9.17 of the first committee report: see paragraph 24 of this judgment.    [Back]

Note 8    A planning committee update sheet added to para 9.25 “the duty imposed upon the Council in respect of protected species will be met through compliance with the conditions proposed to be imposed in this case that have been formulated following consideration of the application and supporting information by the County Ecologist.”    [Back]

Note 9   This response included some further conditions if the Defendant was minded to approve the application. They concerned protection of retained hedgerows during and after construction and highly associated with the development to be designed to avoid impacts on bats and their habitat. These were adopted as conditions for the permission.    [Back]

Note 10   See paragraph 19 above.    [Back]

Note 11   See paragraph 19(c) above.    [Back]

Note 12   See also paragraphs 2.13 and 2.14 of that landscape report.    [Back]

Note 13   See paragraph 27 above.    [Back]

Note 14   i.e. “the retention of a significant length of the existing roadside hedge in addition to the creation of a new hedgerow elsewhere in the development.”    [Back]

Note 15   [2011] UKSC to [2011] 1WLR 268.    [Back]

Note 16   It prevents any site clearance, site preparation or development work before a landscaping scheme has been submitted and approved in writing by the LPA in consultation with specialist advisers. It also requires the scheme to demonstrate that existing hedgerows shall be substantially retained and managed to maintain their biodiversity value.    [Back]

Note 17   To the extent that Dr Manchester’s letter of 5 September 2012 states that “sufficient information had been submitted”, this is erroneous and goes only to the amphibians and not to the bats.    [Back]

Note 18   See paragraphs 29 and 30 ofMorge.    [Back]

Note 19   See Gransden (E.C.) & Co Limited v Secretary of State for the Environment [1986] JPL 519.    [Back]