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 Handed Down at the Royal Courts of Justice, Strand, London, WC2A 2LL
		06/03/2014

Mr Justice Stewart:

Introduction

1. The Claimant ("C") seeks permission to apply for judicial review to quash the Defendant's ("D") decision of 17 April 2013. This decision granted outline planning permission for the development of 169 hectares of land adjacent to the A617 Mansfield Regeneration Route.
2. Lewis J refused permission on paper on 18 October 2013. The application has been renewed on 6 of the 7 original grounds.
3. There is no issue about C's standing. She is resident on the Bellamy Road Estate which is adjacent to the site. The core of the objection, and of this application, concerns the impact on the bird population of Harlow Wood which is part of the larger Sherwood Forest Region. The proposed development is an urban extension on land adjacent to the regeneration route in the close vicinity of Harlow Wood.
4. I remind myself that the threshold for permission is a low one, namely that one or more grounds have to be arguable.

The Officer's Report

5. The Officer's report was published prior to the planning committee meeting which took place on 12 July 2011. The report followed a number of letters from Natural England between 1 April 2010 and culminating in a letter dated 16 November 2010. The following are relevant extracts of the report:

16. "Natural England

No objection subject to conditions and section 106 agreement……

Ecological Issues

The site consists primarily of greenfield land, the majority of which is in use for agricultural purposes. In order to ascertain the impact that the development would have on the ecology of the area, Natural England and Nottinghamshire Wildlife Trust (NWT) have been formally consulted on the application. Although details would be finalised at reserved matters stage, no objection has been raised by Natural England. It is noted that NWT have objected to the proposal, in particular with regard to the issues relating to the presence of Nightjar and Woodlark within the area and whether a potential Special Protection Area (pSPA) or a Special Protection Area (SPA) will be designated. However as Natural England considers that the proposals are acceptable in principle subject to conditions and a Section 106 agreement being secured, the comments of NWT are noted but do not justify the refusal of planning permission.

Potential Special Protection Area/Special Protection Area

Natural England has advised that the presence of a substantial breeding population of Nightjar and Woodlark in the Sherwood Forest region may warrant classification of suitable territories and habitat as a Special Protection Area (SPA) under the European Union Birds Directive. Prior to such an area being designated a potential Special Protection Area would need to be established (pSPA) by the Secretary of State. However this process has not been commenced and at the present time Natural England's formal advice is that the Sherwood Forest region is not an existing pSPA or SPA. The relevance of this to the Lindhurst proposal is that Harlow Wood, to the southern boundary of the site, has been identified by NWT as an important area for Nightjars and Woodlark and therefore could be included within any pSPA or SPA designated. If such a designation was made, it would be necessary to undertake a Habitat Regulations Assessment and to assess any impacts that the Lindhurst proposal would have on the pSPA and SPA, even if outline and/or reserved matters approval had been given by the Council at that point.

In the event that a Habitat Regulations Assessment identified that the Lindhurst development would have an unacceptable impact upon any pSPA or SPA designated and these impacts could not be successfully mitigated against, it could become necessary to formally modify or revoke the permission, to prevent the adverse impact(s) from arising. If the permission was revoked then the Council would be liable to pay compensation to the applicant/land owners which, given the size of the development, could represent a significant sum. The advice from Natural England is therefore to take a risk based approach prior to the granting of outline planning permission.

At the present time, with no pSPA or SPA designated, Natural England has no objection to the proposal. The applicant has presented a proposed protocol to reduce any impact upon the adjacent Harlow Wood which consists of a number of elements including fencing and a water barrier to prevent access from both people and cats and this is accepted as being appropriate for the present circumstances, subject to final details being secured by way of a planning condition. An area of replacement land suitable for ground nesting birds would be provided off-site and this would form part of the Section 106 planning obligation. However, Natural England advise that if a pSPA or SPA is designated, based upon approaches taken in similar circumstances elsewhere in the country, it is likely that an exclusion zone of 400 metres from the pSPA/SPA could be applied within which no residential development could take place. If such an exclusion zone was applied to the Lindhurst proposal it would prevent the residential development on much of the land to the south of the MARR route and any permission in place (which was not already built out) may need to be modified or revoked.

Legal opinion has been obtained regarding this matter in order that the risk to the Council if a pSPA/SPA is designated can be assessed. It is considered that the biggest risk lies with the possibility that the permission would have to be modified or revoked and that the Council would be obliged to pay compensation to the parties affected by this. To eliminate this possibility, the applicant has agreed to include a provision within the Section 106 planning obligation that the owners would not seek compensation in the event the planning permission is modified or revoked. The legal opinion obtained suggests that using a Section 106 agreement to indemnify the Council against the financial risk of modification or revocation is a legitimate way to proceed.

The Rainworth Incinerator Public Inquiry decision has been considered and the reasons for refusal relating to the pSPA/SPA issues are noted. However given that the Lindhurst site is adjacent to, but not within, an area identified as important for Nightjars and Woodlarks, that an extensive protocol has been devised to offer protection to Harlow Wood and this has met with the acceptance of Natural England, and that the Section 106 Planning Obligation would contain an indemnification should planning permission need to be revoked, it is considered that adequate measures have been put in place to address issues relating to the pSPA/SPA at the present time. In conclusion, it is considered that the proposed development, circumstances and site characteristics of the Rainworth Incinerator proposal were materially different to the Lindhurst proposals and therefore the Lindhurst development must be considered upon its own merits."

Subsequent Chronology

6. On 11 July 2011, following the publication of the Officer's report, Natural England wrote to the Planning Officers and asked that their email be provided to the planning committee. The email stated in its critical paragraphs:

"…On reading the ecological issues chapter of the committee report, it is apparent that Natural England's advice on this application has not been fully reflected with specific regard to the issue of the need for a risk based approach and the possibility of a future Sherwood SPA. Whilst it could be argued that points are not factually incorrect, it is considered that the report does not properly represent Natural England's advice. I therefore would like to clarify the following points, and ask that this email is provided to the committee…

With regard to the Lindhurst proposal, Natural England has made it clear that on the issue of a possibility of a future SPA, we cannot object to the proposal. However, we have also made it clear that on the issue of the possibility of the future SPA and the application of a risk based approach, we also cannot support the proposal because, despite all measures that have been included, the close proximity of the development to Harlow Wood and the unproven effectiveness of barrier fencing leads us to conclude that if the site was formally proposed as an SPA Natural England would be likely to object if a 400 metre buffer zone was applied.

The committee report makes reference to Natural England finding the proposals acceptable to regard to the consideration of the possibility of an SPA…and has no objection…This fails fully to reflect our advice of "no objection but also not able to support the proposal".

The protocol to protect Harlow Wood includes the barrier fencing, which Natural England has repeatedly said has unproven and uncertain effectiveness, and would be unlikely to be supported by Natural England if an SPA was in place. Again it is felt that this advice is not truly reflected in the committee report, where it is stated that the protocol has met with the acceptance of Natural England…"

7. D accepts that Natural England's email was not provided to the planning committee. However the committee was told of the email. Extracts from a transcript of the meeting state:

"Natural England have contacted planning department and have made the following comments just to clarify their position: Natural England supports many of the principles set out in the scheme such as the habitat creation, sustain urban drainage systems, green roofs, etc, but are not in a position to either support or object to those proposals affecting that part of the site which adjoins an area of Harlow Wood which may be designated as a special protection area…

Nottingham Wildlife Trust objects to the proposal and have provided additional comments in respect of their comments…recreation pressure from the development will increase in the area and impact on the proposed SPA…

Impact on the possible SPA they considered that a multi varied solution may not be a robust solution and Natural England's comments should be taken into account. A proposal has been formulated with Natural England who have not objected to the proposal overall although it still has not committed to supporting or objecting to the proposal around the SPA…

Turning to ecological issues, Natural England and Notts Wildlife have been consulted on the application. No objection has been raised by Natural England to various elements of the proposal in respect of Habitat creation such as green roofs but neither objection (sic) nor supports the proposal that may impact on the proposed future SPA at Harlow Wood. Notts Wildlife Trust have objected to the proposal however, as Natural England consider that the proposal in part as acceptable in principle subject to conditions and to section 106 agreement being secured…

Looking at the potential special protection area the presence of a substantial breeding population of Nightjars and wood lark in the Sherwood Forest region may warrant classification of a suitable territories and habitats as a special protection area under the European Union Bird Directive. However, this process has not commenced and at the present time Sherwood Forest Region is not an existing PSPS or SPA. If such a designation were to be made it would be necessary to undertake a habitat regulations assessment and to assess any impact the Lindhurst Development would have on these areas even if outline and or reserve matters approval had been given by the Council at that point. In the event that a habitat regulations assessment identified that the Lindhurst Development would have an unacceptable impact on those areas and these impacts could not be successfully mitigated against it could become necessary to formerly modify or revoke the permission in which case the Council would be liable to pay compensation to the Applicants and Landowners. The advice from Natural England is therefore to take a risk based approach prior to the granting of outline planning permission. In the absence of an SPA the Applicant proposes measures to reduce the potential impact on Harlow Wood. In an area of complimentary land suitable for ground nesting birds will be provided off-site and this would be part of the Section 106 Agreement however, Natural England advised that if an SPA is declared based upon the approach its taken in similar circumstances elsewhere in the country it is likely that an exclusion zone of 400 metres from the area would be applied within which no residential development could take place. If such an exclusion zone was applied to the Lindhurst Development's proposals it would prevent the residential development on much of the land to the south of the Marr Route and any permission in place which was not already built out may need to be modified or revoked. A legal opinion has been obtained regarding this matter in order that the risk to the Council if such an area is designated can be assessed. It is considered that the biggest risk lies with the possibility that permission would have to be modified or revoked and that the Council would be obliged to pay compensation to the parties affected by this. To eliminate this possibility the Applicant has agreed to include a provision within the Section 106 Obligation that the owners would not seek compensation in the event the planning permission is modified or revoked. The legal opinion obtained suggests that using a Section 106 Agreement to indemnify the Council against the financial risk of modification or revocation is a legitimate way to proceed.

The Rainworth Incinerator Public Inquiry decision has been considered and the reasons for its refusal relating to the PSPA and SPA issues are noted. However, given that the Lindhurst site is adjacent to but not within an area identified important for Nightjars and wood larks and an intensive protocol has been devised to offer protection to Harlow Wood and although this has not been met with the acceptance of Natural England and that a Section 106 Obligation would contain an indemnification should planning permission need to be revoked it is considered that adequate measures have been put in place to address issues relating to the PSPA at the present time.

In conclusion it is considered that the proposed development circumstances and site characteristics of the Rainworth Incinerator proposal are materially different to the Lindhurst Development must be considered on its own merits.

……….

I will also clarify the point from the report earlier that whilst an extensive protocol has been devised in relation to the protection of Harlow Wood, Natural England have confirmed they will neither support nor object to that protocol but would not support any barrier fencing in the event that pSPA was declared…

8. Members of D's planning committee resolved to grant planning permission at the 12 July 2011 meeting. The voting was even and the resolution to grant resulted from the casting vote of the Chairman. No decision notice was issued by D until 17 April 2013, owing to the time needed to finalise the section 106 obligation. In the interim:

(i) By letter dated 25 October 2012 D wrote to Natural England asking them to clarify that there was still no designated pSPA or SPA in the Sherwood Forest area, and asking whether there was a legal obligation for an appropriate assessment to be undertaken in order to satisfy the requirements of the Habitats Regulations.

(ii) By letter 14 January 2013 Natural England responded saying there was still no pSPA or SPA in the area and therefore Natural England did not consider that there was a specific legal requirement for D to undertake a formal appropriate assessment. The letter then said:

"As previously advised, and as set out in our advice note, it has been strongly recommended that the Council still consider the potential risks to ground nesting birds will form interest features of any future SPA, and their associated habitat, namely nightjar and woodlark…

On the specific point of a possibility of a future SPA classification, our advice is that the decision does not, in our view, follow our suggested risk based approach…

On checking the committee report prior to the planning committee for the Lyndhurst proposal last year, I felt that Natural England's advice had not been fairly presented within the report and I therefore telephoned and emailed to clarify our position and asked that my email be provided to the committee…I am led to believe that the email was not read to or given to committee members."

(iii) On 20 June 2012 C's solicitors had written to D urging D to return the application to the planning committee on the basis of lack of proper consideration to Natural England's position and that, even if the area was not an SPA or pSPA, Member States still have an obligation to take all steps necessary to ensure that the areas which may be designated are not threatened in the interim.

(iv) In February 2012 D formally published a guidance document: "Mansfield District Council Risk Based Approach to Determining Likely Significant Effects on Nightjar and Woodlark Populations in the Sherwood Forest Area." The guidance document states "failure to apply this risk based assessment may result in the Council (MDC) refusing applications, as MDC cannot ensure that possible impacts on woodlarks/nightjar have been adequately addressed."

(v) The matter was not referred back to committee and permission was granted in April 2013.

Ground 1: Failure to Adopt the "Risk Based" Approach to Assessing Impacts on Woodlark and Nightjar.

9. Within this ground three reasons are given as the basis for challenge.
10. The first reason is that D failed to give genuine consideration to Natural England's advice.^[1]
11. It is common ground that Natural England cannot make planning policy. C complains that no reasons were given either in the Officer's report or in the transcript of the committee meeting for declining to adopt the "risk based approach". C alleges that D misunderstood the nature of the risk based approach and what it required.
12. It is also common ground that because the site was not an SPA or pSPA no assessment was required under Regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("2010 Regulations").
13. In an advice note dated 11 July 2011 Natural England had also said:

"We therefore advise the local planning authority should seek to satisfy themselves that planning applications contain sufficient objective information to ensure that all potential impacts on the breeding nightjar and woodlark population have been adequately avoided or minimised as far as is possible using appropriate measures and safeguard, at this stage, in order to ensure that any future need to review outstanding permissions under the 2010 Regulations is met with a robust set of measures in place.

Natural England suggest that as part of a risk based approach to forward planning and decision making, development plans and proposals are accompanied by an additional and robust assessment of the likely impacts arising from the proposals on breeding nightjar and woodlark in the Sherwood Forest area. This should ideally cover the potential direct, indirect and accumulative impacts which may include, but may not be limited to, the following…"

14. In this case the development plans and proposals were accompanied by an environmental statement. I only have part 6 "Ecology and Nature Conservation" and some of the details are confidential because of the sensitivity. Nevertheless from what is available it is possible to note that:

(i) The document contained a phase one habitat survey plan, breeding birds survey results, nightjar survey plan and nightjar survey.

(ii) A number of organisations etc were consulted as regards species and habitats (para 6.1.8).

(iii) Nightjars are specifically referred to under a heading "Disturbance to Wildlife" (para 6.5.21).

(iv) Habitats on site were noted as having potential to be affected by recreational activities (para 6.5.28).

(v) The potential for disturbance was noted (para 6.5.33).

15. In addition, it is clear from the transcript of the meeting on 11 July 2011, and in particular the section which I have underlined in paragraph 7 of this judgment, that measures to reduce the potential impact on Harlow Wood had been proposed by the Applicant and been the subject of consultation. In addition the advice of Natural England that, if an SPA was declared, then it was likely that an exclusion zone of 400 metres with no residential development would be applied; finally, that the extensive protocol devised in relation to the protection of Harlow Wood was neither supported nor objected to by Natural England, but that they would not support any barrier fencing in the event that a pSPA was declared.
16. In the light of the documentary evidence and despite the Claimant's submissions I fail to see what of substance was not done which ought to have been done. In reply Mrs Graham-Paul suggested that no measures and safeguards had been carried out and no risk based assessment had been done. She prayed in aid Natural England's emails which post dated the decision of members in July 2011. However, in my judgment, there is nothing in this point. If one gets to the heart of the matter, it is difficult to see in any concrete terms what D did not do which Natural England were advocating, short of the site being a pSPA or an SPA.^[2] For those reasons I reject the ground based on failure to adopt a risk based assessment.
17. As to reasons, I do not accept that there is any arguable case. The duty to give reasons in a grant of planning permission is not to be equated with the duty to give reasons in a planning appeal decision^[3].
18. The second reason is based on legitimate expectation. C submits that the February 2012 document, being a guidance document published by D, gave rise to a legitimate expectation of the public that Natural England's advice would be followed. This is addressed in a witness statement from Mr Saxton, Head of Planning and Regulatory Services employed by D. His statement is dated 26 September 2013. He says that the document uses a decision tree to advise officers on how to proceed with these types of planning applications, and was published in the interests of transparency. He says that, even if the decision tree had been applied in this application, it would not have required any action different to that already taken by D, as it does not require that an appropriate assessment^[4] is to be undertaken. The two points that it indicates should be obtained, namely information on ecological impact together with advice from Natural England, had already been obtained by D in respect of this site. Mr Saxton explains that the guidance note had been born from and was based on how the present application had been assessed against pSPA/SPA issues.
19. I have looked at the decision tree, stage 5 which says:

"Likely significant effects. Request further info on potential impacts (e.g. ecology). Please see Appendices 2, 3 and 4. Seek Natural England advice."

I have also considered appendix 3 which refers to the table which will be used by development control officers to record sections taken to monitor/address any likely significant effects. I accept what Mr Saxton says. Again, getting to the core of the matter, it seems to me that this guidance document does no more than reflect what Natural England were suggesting and what was done in the present case. I therefore do not consider this to be an arguable challenge.^[5]

20. The third reason is that even if there is no designation of a site as an SPA or pSPA, authorities remain under a duty to take all steps necessary to ensure that areas which may be designated are not threatened in the interim. C relies on Article 4(4) of the Wild Birds Directive^[6] which states:

"Outside these protection areas (i.e. outside SPAs and pSPAs), Member States shall also strive to avoid pollution or deterioration of habitat."

Article 4(4) is not directly enforceable against D. It is a requirement placed upon Member States.

The specific duty is imposed by Regulation 9(A) of the 2010 Regulations which states:

"8. A competent authority in exercising any function in or in relation to the United Kingdom must use all reasonable endeavours to avoid any pollution or deterioration of habitats of wild birds…"

This point is unarguable in my judgment. I reiterate that, short of carrying out a regulation 61 assessment, which is not required by the Regulations, D had done all that was required. Nor at any stage did Natural England suggest that D was in breach of Regulation 9A. Nor are the cases cited by C of relevance, since the main issue before the European Court in these cases was the approach to designation of sites as SPAs.^[7]

Ground 2: Committee Significantly Misled as to Natural England's Advice

21. C makes great play of a statement from Councillor Wright who was one of the three committee members who abstained from voting. He says that it is possible, that if he had known what Natural England's full position was, he may have voted against the development. I have extracted at paragraph 7 above some of the transcript of the hearing before the planning committee. They do not set out the transcript in full. On the basis of those brief statements and in the context of the transcript in full, I do not accept that there is any arguable case that the committee were misled.

C's submissions boiled down to two. The first was that the words "in part", "although" and "not" which I have underlined and had typed in bold in paragraph 7 above, were insufficient to convey to members of the committee the amendments from the written officer's report. It is said that this is particularly the case because it had not been made clear that the report needed correcting or clarifying. Secondly, it is said that the word "therefore" (which is underlined) is wrong because it is inaccurately in the context of the Council being liable to pay compensation to the Applicants and Landowners i.e. in the context of an economic not ecological consideration.

I regard both these points as bad points. The transcript is clear and sufficient. It is wholly inappropriate for C to criticise particular words on the basis that it may not have fully conveyed the position to members. As D submitted, a planning meeting is a dynamic and discursive process. The planning committee is a committee specifically charged with considering applications for planning permission. As to "therefore", the committee would have been well aware that Natural England's consultation was an ecological one and not an economic one.

22. In short the test set out in Oxton Farms v Selby District Council^[8] is not even arguably met. Judge LJ said in that case:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury….

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."

Ground 3: Erroneous Distinguishing of the Rufford Incinerator Decision

23. A previous planning decision may be a material consideration. Whether it is or not depends on sufficient similarity. In North Wiltshire DC v Secretary of State for the Environment^[9] the court stated:

"If he decided this case in a particular way was he necessarily agreeing or disagreeing with some critical aspects of the decision in the previous case?"

24. In the Rufford Incinerator decision the risk based approach had been adopted notwithstanding the lack of an SPA or pSPA. The Officer's report in the present case noted and considered the decision and gave reasons for not following it.^[10] C alleges that the reasons given do not justify the distinction claimed, that being that the Lyndhurst site is adjacent to, not within, an area identified as important for nightjars and woodlarks. C says that this is irrelevant and that it is well known that the main way which residential development threatened to protect SPA heathland is by the generation of extra visitor pressure. Therefore D took into account an irrelevant consideration and failed to take into account the relevant consideration of the Rufford incinerator approach.^[11] I do not accept that C has made out an arguable ground of claim here. What had happened in the Rufford decision was that a shadow Regulation 61 assessment had been done. Subsequent to that decision the National Planning Policy Framework was published and footnote 26 to paragraph 118 defined a pSPA. The NPPF did not go further, take account of the Rufford decision, and encompass "candidate" or "potential" pSPA's. The key distinction which the Officer made was that the Rufford incinerator was within an area identified as an important one for nightjars and woodlarks whereas the present site was a housing development outside that zone. There is no possible basis for criticising the Officer's report or the decision of D as Wednesbury unreasonable.^[12]

Ground 4: Failure to Refer the Matter Back to Committee Before Issuing the Decision Notice

25. C accepts that Ground 4 is parasitic on Grounds 1 – 3.
26. The legal principle is that if after passing of a resolution some new factor has arisen of which the delegated officer is aware and which might rationally be regarded as a "material consideration", the delegated officer should refer the application back to the authority for specific reconsideration in the light of that new factor.^[13] However, as Carnwath LJ said in R (Dry) v West Oxfordshire DC^[14] this statement is guidance as to what is advisable "erring on the side of caution." The guidance must be applied with common sense, and with regard to the facts of the particular case.
27. C says there were two clear material planning considerations which should have been referred back to the committee, namely:

(i) Natural England's letter of 14 January 2013 stating they believed their advice had not been fairly presented to the committee in the Officer's report, and they were concerned their clarificatory email had not been put before the committee.

(ii) D published the guidance document in February 2012 in which it said that it would apply Natural England's risk based approach in assessing applications.

28. In my judgment neither of these give rise to an arguable case for judicial review. In short:

(i) Natural England's advice had been fairly presented to the committee, looking at the Officer's report and the transcript together.

(ii) The February 2012 document was not a new factor for the reasons given in paragraphs 18 – 19 above.

Ground 5: Taking into Account Irrelevant Considerations in Deciding that the Risk Should the Neighbouring Area be Designated as a pSPA/SPA in the Future was Acceptable

29. C says that there were two irrelevant considerations which D took into account in finding that the risk of a pSPA or SPA designation in the future was acceptable.
30. First was the Interested Party's proposed protocol to protect Harlow Wood. C says that Natural England considered the protocol to be unacceptable should the area be designated a pSPA/SPA^[15]
31. The second basis was D took into account the indemnity in the Section 106 Obligation to the effect that the owners will not seek compensation from the Council should the planning permission have to be revoked or modified in the future if a pSPA or SPA was designated.
32. Again I do not accept that C has made out an arguable ground. This is because:

(i) Neither at the time of the resolution to grant permission nor by the date of the grant of permission had Natural England proceeded to review the possibility of SPA designation to the Sherwood Forest area. The process of designation requires more than assessing the relevant areas by reference to 1% of use by national population criterion, which is only stage one.^[16] In their 14 January 2013 letter Natural England confirmed the process had not advanced further.^[17]

(ii) Members were advised of the risk of revocation if a pSPA/SPA was designated.^[18]

(iii) Members were also properly advised orally "…whilst an extensive protocol has been devised in relation to the protection of Harlow Wood, Natural England have confirmed they wish neither to support nor object to that protocol but would not support any barrier fencing in the event that pSPA was disallowed."

(iv) C says (a) that there is no authority to support D's assertion that liability to pay compensation to an applicant should a pSPA be made in the future is a material consideration; and (b) that it is more than arguable that it should not be, having regard in particular to the fact that the potential window for the payment of compensation to an applicant is a narrow one. C says the duty to review extant planning permission following a classification of a pSPA or SPA only applies before a development is completed, and any revocation or modification does not affect anything done prior to the site becoming a SPA.^[19] Therefore C submits that an authority must be aware that there is a high degree of likelihood of the development being completed before any pSPA or SPA is classified in the Sherwood Forest. If that is acceptable, then the development is acceptable in its own terms, irrespective of the issue of compensation.

(v) In my judgment C's first argument is fully met by the case of Health and Safety Executive v Wolverhampton City Council^[20]. In that case the Supreme Court was specifically considering the context of revocation. It also noted^[21] that planning permission cannot be bought or sold. Nevertheless Lord Carnwarth's comments in the judgment at paragraph 24 – 26 are of clear general application and applied to the present case.^[22] The question he asked in paragraph 24 is "whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the costs of the public of so doing." He answered that in the affirmative, saying in paragraph 26 ""Material" in ordinary language is the same as "relevant". Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant."

(vi) As to C's second argument, Regulation 122 of the Community Infrastructure Levy Regulations 2010 (CIL) provides:

"(2) A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms; ….."

It is clear from the Officer's report and transcript that a legal opinion has been obtained and that the biggest risk lies with the possibility that permission could have been modified or revoked such that D would be obliged to pay compensation to all parties affected. The legal opinion suggested that using a Section 106 agreement to indemnify the Council against financial risk was legitimate.

I see no arguable ground of challenge on the basis that an irrelevant consideration was taken into account. There is no breach of Regulation 122 CIL. In my judgment, the section 106 indemnity was not "a reason for granting planning permission". This is apparent from the Officer's report and the transcript of the meeting, and is also consistent with the reason given for the grant of permission where this agreement is not listed as a reason for granting permission. It is therefore lawful in my judgment for the reasons given in Derwent Holdings Limited v Trafford BC [2011] EWCA Civ 832 (paragraph 8, 15 and 16). It was not regarded as "necessary to offset some perceived planning objections". Even if this were wrong, the proposal had a number of advantages and beneficial effects, but due to the unquantifiable possibility of a revocation and exposure of D to paying millions of pounds in compensation, the proposal which was otherwise unacceptable became acceptable in the presence of such an indemnity.

Ground 6: Unlawful Reliance on a Planning Obligation

33. C's final ground is that the indemnity part of the section 106 obligation is unlawful since it is outwith the terms of section 106 Town and Country Planning Act 1990.
34. Section 106 of the 1990 Act states:

"106 - Planning obligations.

(1)Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation …enforceable to the extent mentioned in subsection (3)—

(a) restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(c) requiring the land to be used in any specified way; or

(d) requiring a sum or sums to be paid to the authority…on a specified date or dates or periodically."

35. C submits that an agreement to undertake not to apply for compensation in the event that planning permission is modified or revoked pursuant to Regulation 69 of the Habitat Regulations is not an obligation which comes within any of the categories in section 106(1).
36. The relevant obligation is as follows:

"6. Protected Species (Nightjars)

6.1 Subject to the District Council complying with 3 of the third schedule below, in the event that the planning permission is modified or revoked pursuant to the review provisions in regulation 69 of the Conservation of Habitat and Species Regulations 2010 and section 97 of the 1990 Act the owner shall not apply to the District Council for compensation pursuant to section 107 of the 1990 Act."

37. D argued that the obligation could come within section 106(1)(a); alternatively within section 106(1)(d). To put it at its lowest, I am of the view that it is arguable that it does not do so. It is certainly arguable that it unduly strains the language of section 106(1)(a) or (d).
38. Nevertheless in the circumstances of the present case, I do not regard this ground of challenge as arguable. I accept C's submission that it is necessary for any new mechanism to provide the same degree of enforceability as a s106 obligation. Nevertheless, the obligation could be made enforceable by two alternative mechanisms: (i) an agreement could be entered into under section111 of the Local Government Act 1972 or the general power of competence in section 1 of the Localism Act 2011. I do not accept that this might be an unlawful sham, as C contends. It would ensure that the present obligation, which is enforceable contractually (in personam) against the Interested Party would not be capable of being circumvented or frustrated if, for example, the Interested Party disposed of the land; (ii) a s106 obligation could be entered into which falls within s106(1)(d) ensuring payment of a sum back to D equal to any statutory compensation which D has to pay pursuant to s107 of the 1990 Act. Even though s106(1)(d) requires payment on a specified date or dates, such an obligation would be valid, notwithstanding that it would be contingent on D having to pay statutory compensation.

Both D and the Interested Party agree that this problem can be properly overcome. I leave it to them to produce, by agreement, an appropriate form of undertaking to the court.

Delay and Lack of Promptness

39. The claim was filed at court within 3 months. The issue is whether it was filed promptly. In this regard there is a witness statement from Lauren Copithorne, C's solicitor. It is dated 3 September 2013.
40. C alleges that there is no issue of delay to consider because part of the claim is based on a right derived from EU Law. C relies on R (Berky) v Newport City Council .^[23] I have found that there is no arguable case based on such a right. The 2010 Regulations were not arguably breached in any way.
41. If the principles peculiar to European law do not apply then the general position is that in Rule 54.5, namely:

"(1) The Claim must be filed –"

(a) promptly; and

(b) not later than three months after the grounds to make the claim first arose."

42. Ms Copithorne's statement said that the decision to bring the claim is not easy for an individual. She continues "Although our firm had been instructed to write two brief letters regarding this development to the Defendant…this did not extend to an instruction to proceed to bring a claim as soon as the decision notice was issued. The residents had to come to a decision to challenge the permission and to raise funds for initial advice before instructing our firm to proceed." The Claimant's pre-action protocol letter was sent on 20 June 2013.^[24] This was over two months after the grant of planning permission. There is no explanation of actual time-scales between these two dates. There is no chronology at all. I do not know for example: (i) when C first consulted solicitors after the decision was made (ii) whether C was told by solicitors that she had to raise funds prior to any initial advice (iii) the date or dates of any meetings between residents. Apart from the above general statements there is a complete vacuum of information in the two month period in circumstances where delay had been put fairly and squarely in issue.
43. C has referred me to certain authorities on promptness.^[25] Nevertheless in the planning context it has been emphasised that the importance of acting promptly applies with particular force where the grounds of the planning permission are sought to be challenged. What satisfies the requirement of promptness will vary from case to case.^[26]
44. Given the total lack of explanation as to the period of the two months until the protocol letter was sent, I do not accept that C acted promptly. Therefore, so far as the claim is brought on domestic law grounds, permission should be refused on this basis also.

Note 1   See R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1 WLR 1 at 4.     [Back]

Note 2   C submitted that this approach of D and IP was not apparent from their grounds of defence or their skeleton argument. Unfortunately, many of the issues on both sides appeared not to be terribly clear prior to the hearing.    [Back]

Note 3   See R (Siraj) v Kirklees MC [2011] JPL 571 at paragraph 14; R (Morge) v Hampshire County Council [2011] 1 WR 268 at paragraph 3C.    [Back]

Note 4   i.e. a Regulation 61 Assessment. This is common ground.    [Back]

Note 5   I do not need to go into the further problem which is that, if C was correct that this was a new material consideration, then very arguably the document is policy. Not being a development plan document, a draft development plan document or a supplementary planning document, it could therefore be said to have no legitimate status. See regulation 5(1) and 6 of 2012 SI No. 767; R (Wakil) v Hammersmith and Fulham LBC [2013] Env. L.R.3.    [Back]

Note 6   2009/147/EE.    [Back]

Note 7   See Commission v Spain (Santona Marshes) C355/90; R v Secretary of State exparte RSPB C-44/95 [1996] 3CMLR 411 at paragraphs 27 – 30.    [Back]

Note 8   [1997] EWCA Civ 4004    [Back]

Note 9   [1992] JPL 955 at 959.    [Back]

Note 10   See paragraph 5 above.    [Back]

Note 11   There were further reasons for distinguishing the Rufford Incinerator decision. These are considered under ground 5 below.    [Back]

Note 12   In the Rufford case the Secretary of State said that the approach there had merit. He did not suggest it was required. [It was not adapted in the subsequent NPPF]. The Rufford incinerator decision proceeded on the basis of concessions and agreements made by all parties before the Secretary of State. Those parties were the applicant planning authority and Natural England.    [Back]

Note 13   See Jonathan Parker LJ in Kides v South Cambridgeshire District Council [2003] 1 P. & C.R. 19 at paragraph 126.    [Back]

Note 14   [2011] 1 P. & C.R. 16 at paragraphs 14 – 16.    [Back]

Note 15   See Natural England’s email 11 July 2011.    [Back]

Note 16   See the JNCC SPA Guidelines.    [Back]

Note 17   They said “at this current point in time, the Sherwood area has not been formally proposed as an SPA, and therefore does not hold any formal classification. It is not a “pSPA” in terms of the legislative and policy requirements that follow from a formal proposal. Formal consultation has not been instigated by national government and Natural England’s advice is therefore that the Sherwood area is not a PSPA”.    [Back]

Note 18   See paragraph 5 above. It was also referred to in the transcript of the meeting.    [Back]

Note 19   Habitats Regulations, regulation 69(1)(a), 71(6).    [Back]

Note 20   [2012] 1 WLR 2264; [2012] UKSC 34.    [Back]

Note 21   Paragraph 51.    [Back]

Note 22   See also paragraph 48.    [Back]

Note 23   [2012] EWCA Civ 378.     [Back]

Note 24   The Claim form was issued on 15 July 2013 in respect of the decision of 17 April 2013.    [Back]

Note 25    R (Lichfield Securities Limited) v Lichfield District Council [2001] EWCA Civ 304 at paragraph 37; A1 Veg Limited v London Borough of Hounslow [2003] EWHC 3112 (Admin).    [Back]

Note 26   See the judgment of Keene LJ in Finn-Kelcey v Milton Keynes Council [2008] EWCA Civ 1067 at paragraphs 21 – 25. Given the total lack of explanation as to the period of the two months until the protocol letter was sent, I do not accept that C acted promptly and permission should be refused on this basis also.    [Back]