QUEEN'S BENCH DIVISION
PLANNING COURT
2 Redcliff Street, Bristol, BS1 6GR |
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B e f o r e :
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THE QUEEN on the application of COMMUNITY AGAINST DEAN SUPER QUARRY LIMITED |
Claimant |
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CORNWALL COUNCIL |
Defendant |
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SHIRE OAK QUARRIES LIMITED |
Interested Party |
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Sancho Brett (instructed by Cornwall Legal Services) for the Defendant
David Elvin QC and Richard Moules instructed by DLP Piper UK LLP)
for the Interested Party
Hearing date: 20 January 2017
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Crown Copyright ©
Mr Justice Hickinbottom :
Introduction
The Law
"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… (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;…".
"(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…: …(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".
"… a competent authority, in exercising any of its functions, must have regard to the requirements of the [Habitats Directive] so far as they may be affected by the exercise of those functions."
A local planning authority is a "competent authority" for these purposes. In this judgment, references to "regulation 9(3)" are to regulation 9(3) of the Habitats Regulations.
"(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted…".
"(1) The local planning authority may issue a notice (in this Act referred to as an "enforcement notice") where it appears to them –
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations."
i) the owner of the land is guilty of an offence, as is any person who has control of or an interest in the land who carries on or permits an activity required by the notice to cease (section 179); andii) the local planning authority may enter the land and take the steps required to be taken by the notice, and recover the reasonable costs of so doing from the person who is owner of the land (section 178(1)).
(i) issue a planning contravention notice requiring a person to provide certain information about a suspected breach of planning control (section 171C(1));(ii) issue a temporary or permanent stop notice where it considers that there has been a breach of planning control, and that it is expedient that the activity which amounts to the breach is stopped (sections 171E and 183); and
(iii) serve a breach of condition notice where conditions attached to a planning permission have not been complied with (section 187A).
"Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control…"
"Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case.
In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
- there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
- development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
- in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed."
It is noteworthy that, under this guidance, a planning authority should usually not take enforcement action when, in its assessment, an application for retrospective permission provides a better process for dealing with the relevant planning issues.
"2.1 – General planning enforcement
The Council will operate its planning enforcement activities within the statutory requirements and in accordance with the Council's policies and procedures. This means that:
- …
- Action will not be taken just because development has started without planning permission.
- The [Council] does not always have to take action but the circumstances of the case must always be considered…'
…
2.3 – Formal enforcement action
… The Council will only take enforcement action when it is considered expedient to do so in the public interest
…
Formal enforcement action will not be instigated solely to regularise breaches in planning control or seek a planning fee. In taking formal enforcement action the Council will be prepared to use whichever available enforcement power or combination of powers that are appropriate to deal effectively with an identified breach of planning control.
In deciding whether to take enforcement action the Council will have regard to the development plan and to any other material considerations. These may include (but are not limited to):
- …
- Protection of species…
…
In considering whether it is expedient to take enforcement action the decisive issue for the Council will be whether the breach of planning control unacceptably affects public amenity or the environment. Any action will be proportionate with the breach of planning control to which it relates…'
…
2.6 – Supportive compliance
The [Council] will be flexible and consider genuine solutions to address confirmed breaches of planning control."
"The operator shall ensure that, where appropriate, a barrier suitable for the purpose of discouraging trespass is placed around the boundary of the quarry and is properly maintained."
The Factual Background
"Dean Quarry, as an operational mineral site, represents numerous potential hazards and the site must therefore be secured for health and safety purposes. This is particularly relevant given the public rights of way which run along the south-western, southern and eastern boundaries of the site. It is therefore necessary to fence the boundary of the Quarry."
"… [I]t is beyond argument that the ROMP permission is the subject of a legally valid permission which followed the consideration of appropriate environmental information in the form of an environmental impact assessment which supported the ROMP application…."
The permission for the ancillary development (including the fence) was quashed on the basis that, although the Council had screened the project and determined that it did not require an EIA, the claimant requested a screening direction from the Secretary of State who, on 9 June 2015 (i.e. after planning permission had been granted), determined that the proposal was likely to have significant effects on the environment and was "[EIA] assessment development" requiring an EIA. Regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824) ("the EIA Regulations") prohibits planning permission or consent without such an EIA assessment. On 18 December 2015, Dove J therefore quashed the planning permission for the fence; although, of course, this left the ROMP permission to win and work minerals on the Site undisturbed. The application for the ancillary development was remitted to the Council for redetermination.
"A perimeter fence was erected between Sept 15 and Jan 16, before the permission was quashed. It is there for Health and Safety reasons and to prevent vandalism they have suffered in recent months. The developers propose to apply for planning permission for it and state they will submit a fresh screening opinion request by the end of Aug 2016 and will follow up this with a Planning application. The NPPG advice advises that Councils should avoid taking action where they consider that a Planning Application is an appropriate way to regularise the position. In view of this the Council consider that it is proportionate to allow the owners to re-submit a Planning Application for the fence."
"The site owners advise that they intend to submit a screening opinion for the fence by the end of August 2016 and then a Planning Application for its retention. In view of the potential public safety implications of removing it and the advice set out in the NPPG above I consider that it would be appropriate to give the site owners an opportunity to seek planning permission for the fences retention. This matter should be reviewed by the end of October 2016 as to progress of the screening opinion/planning application."
"As regards to the fence I consider that its visual impact should be balanced with the health and safety of the general public. The NPPG advises that Councils should avoid taking action if it considers that a Planning Application is the appropriate way forward to regularise a breach. The site owners have indicated that they will submit a fresh screening opinion under the EIA Regulations by the end of August 2016 with a view to then submitting a Planning Application. I therefore consider that it would be proportionate to allow the site owners time to do this but that the matter is reviewed at the end of October 2016.
In respect of the breach of conditions regarding the ponds and planting the site owners accept they are in breach of these and I consider that no overriding arguments have been put forward as to why these conditions should not be enforced and a BCN should be served. I do though consider that compliance dates of 6 months for the ponds and April 2017 for the planting would be a proportionate timescale to undertake these works.
Finally for the reasons set out in the above report I do not consider that condition 31 is being breached in respect of the Jetty and Silo walls and therefore no further action should be taken in respect of this."
"The development is part of a wider proposal to recommence mineral extraction at the site and the potential cumulative impacts need to be taken into account rather than considering the development in isolation."
The opinion indicated that the principal impact of the fence was visual – indeed, it said there were no other direct impacts, other than visual – which could be lessened by careful siting and appropriate landscaping. However, it concluded that, by virtue of its nature, size and location, the fence was likely to have significant effects on the environment, and thus required an EIA. SOQ immediately requested a screening direction from the Secretary of State.
"The combination of geology, mild oceanic climate conditions and its southerly location has led to the development of a unique range of habitats with many rare species of local and national importance."
"The Environmental Impact of the fence is important and depending upon a full consultation process and consideration of the material implications of the development the Council may eventually find it acceptable once the screening/scoping process has been completed and a Planning application determined. If approved the Council is likely to want to impose planning conditions to secure a time frame for its removal (linked to the expiration of the ROMP for example). Landscaping may also be required as might a method statement to ensure that the environment is protected at the point the fence is removed. In the Council's Enforcement Report on the 2nd September (which authorised the BCN for the ponds and landscaping) the applicant was given until the end of October 2016 to progress a screening opinion/planning application. The Council did not consider that the fence was so environmentally damaging that it should be removed immediately."
"The operator has produced a bat survey which was undertaken in 2014 and confirmed that the sensitive locations associated with the use of bats are located in redundant structures and sympathetically converted buildings on the eastern side of the quarry. The operator has confirmed that it does not intend to undertake any works in this area at this time."
"As regards to the fence the quarry has a planning permission to win and work materials, the site owner has made a request to the [Secretary of State ('the SoS')] for a Screening Direction in respect of the fence to ensure certainty on this matter. Following the judgement on the Roskilly Judicial Review earlier this year it would be unreasonable to expect a planning application for the fence accompanied by an Environmental Statement without the confirmation by the SoS of the fence being EIA development. There are no immunity issues in respect of the fence which has only been erected in the last 12 months, and as the site has suffered vandalism it is not unexpected that the sites owners wish to secure their perimeter. The site owners are working towards submitting a Planning Application and the Scoping/Screening process to enable this is underway. It is recommended that no enforcement action is taken at this stage but the matter is reviewed by the 14th December 2016 if a Planning Application is not submitted."
"A meeting took place between Council officers and representatives of the operator in the week commencing 14 November 2017.
The operator has confirmed its intention to submit a planning application for the fence and will endeavour to do so by 12 January 2017. It cannot guarantee that this date will be met because it intends to rely on external specialist consultants to prepare the necessary Environmental Statement and there may be delays in progressing matters over the Christmas period.
The Council has carefully considered the circumstances of this matter and considers that it would be appropriate to refrain from taking any further enforcement action in respect of the fence until 12 January 2017 on the basis that an application is likely to be submitted on or around this date for the reasons previously provided.
The Council will review the position and decide whether further action should be taken in the event that no application is submitted and will in any event keep the matter under review."
There is no suggestion that this record is anything but accurate.
"In terms of going forward Council Officers met with representatives of the operators on the 15th November 2016 and they have followed that meeting with an email stating that they intend to submit a retrospective Planning Application for the fence and will endeavour to submit it by the 12th January 2017. This date though cannot be guaranteed due to the short time scales involved, Christmas falling within this time period and that the operators will be reliant on external consultants to provide assessments of the key chapters in the Environmental Statement.
I consider that the above timetable is reasonable when considering the work required to complete an Environmental Statement and that no enforcement action be taken but that the matter is reviewed shortly after the 12th January if an application is not submitted by this time."
i) Construction of Section 1 of the fence did not impact on the bats' use of the quarry, and construction of Section 2 did not result in any significant effects on the use of the buildings previously identified as being used by bats (see paragraphs 5.5.11-5.1.15 of the Environmental Statement).ii) The presence of the fence has no effects on bats (paragraphs 5.5.22-5.5.24).
iii) With regard to decommissioning, there are no foreseeable impacts to any bats that may continue to use the quarry (paragraph 5.5.31).
iv) The impact of constructing the fence did not, and the existence of the fence will not, increase the significance of any potential impacts on habitats of resuming active quarrying (paragraphs 5.6.4 and 5.6.8).
"As such, even if the Council did not have this information before it at the date it took the decision complained of, the [Environmental Statement] confirms that [S]ection 1 of the fence has no impact on bats and the installation of… [S]ection 2 of the fence had no significant impact on bats."
"14. Due to the modest height of the fence it would have little if any impact on the bats and their use of flight corridors.
15. I have recently discussed these issues with the Council's ecologist who confirms the position as set out above and that the bats would fly above the fences and there should be no significant impact on the bats and their habitats.
16. There is no evidence to state that the fence harms the habitats of protected species and in particular bats. If the Council took enforcement action at this time with no evidence that protected species are likely to be harmed and contrary to the advice of its own ecologist it is likely that this enforcement action would fail if challenged."
The Ground of Challenge
Discussion
i) The Council, as enforcement authority, had a wide discretion as to whether any enforcement action should be taken in respect of the fence as unauthorised development; and, if so, what action should be taken. In particular, it had such a discretion as to when any further enforcement steps should be taken.ii) Looking at the planning history, as set out above, it is clear that the Council generally (and, in particular, Mr Drew) had the potential adverse environmental impact of the fence well in mind at all relevant times. It is inconceivable that they did not. In June 2015, contrary to the screening opinion that the Council had given, the Secretary of State had issued a screening direction on the basis that the fence was likely to have significant effects on the environment, and thus required an EIA (see paragraph 35 above); and the Council itself, just two weeks before the decision now sought to be challenged, issued a screening opinion to the same effect (paragraph 46 above). On 23 September 2016, just days before that decision, the Claimant had emailed Mr Drew indicating that they had instructions to commence judicial review proceedings for a mandatory order that the Council take effective action "in order to halt and thereafter prohibit likely significant effects on the environment" (paragraph 48 above).
iii) I accept that the main concern may have been in respect of the visual impact of the fence – that is made patent in the Council's screening opinion of 12 September 2016 – but it is clear that the potential adverse effect on bats was also in the mind of the Council and particularly Mr Drew at all relevant times. In support of the application for permission for the development including erection of the fence, SOQ obtained and submitted the November 2014 Bat Survey Report (paragraph 31 above). In the September 2016 Delegated Enforcement Report, there is a section on "disturbance of bats" (paragraph 51 above).
iv) Again, I accept that neither the Enforcement Report, nor any other documents that Mr Drew had in September 2016, referred to the issue of potential adverse impact upon bats in any great detail. In particular, as Mr Pugh-Smith emphasised, they did not expressly consider the adverse impact of the presence of the fence on bat flight corridors or the cumulative effect of the fence with the quarrying operations authorised by the ROMP permission. However, I accept Mr Brett's submission: they did not need to do so, because (a) the Enforcement Report was only intended to provide a summary of the Council's considerations, and (b) as the Council considered that the impact of the fence on bats would be, at most, limited, there was no need to focus on this issue.
v) In the Delegated Enforcement Report, Mr Drew was entitled to focus on the main issues, as he considered them to be, of which there were many. It is to be noted that the fence was not continuous. Few bats had ever been identified at the Site, and there was no evidence that many bats were ever roosting or foraging there. The evidence was that the foraging was in the west of the Site, away from the main (Section 2) length of fence. There could have been no significant foraging to the east of the Site, because the sea was directly adjacent. Proceeding on the basis that the impact of the fence on bats was, at most, minor was perhaps inevitable: it was certainly justified.
vi) I do not accept Mr Pugh-Smith's submission that Mr Blake conceded that Mr Drew did not consider the relevant provisions of the Habitats Directive and Regulations in paragraph 18 of his 13 January 2017 statement (quoted at paragraph 62 above). Whilst that paragraph may perhaps have been better phrased, when viewed in context, it is in my view tolerably clear: it means no more than, even if the Mr Drew had had access to the information now available in the January 2017 Environmental Statement, it would not have made any difference to the 29 September 2016 decision not then to take any immediate further enforcement action, because that information confirmed the lack of adverse impact upon which Mr Drew had then proceeded. In other words, even if Mr Drew had erred as Mr Pugh-Smith contends, the error was immaterial. That is a very different thing from conceding that Mr Drew did so err.
vii) Mr Pugh-Smith also criticised the failure to consider the cumulative effect on bats of the fence with the quarrying operations authorised by the ROMP permission. However, I accept Mr Elvin's submission that the applicable criteria for "Changes and extensions" to authorised EIA development (such as the operations the subject of the ROMP permission) are set out in paragraph 2(13) of schedule 2 to the EIA Regulations, namely whether "the development as changed or extended may have significant adverse effects on the environment", or whether the relevant "thresholds and criteria… applied to the change or extension are met or exceeded" (emphasis added, in both quotations). Therefore, whilst the impact of the change or extension upon the authorised development has to be considered, the focus is upon the effect of the change or extension itself. Thus, the wider issues in relation to the quarry (e.g. as to traffic movements, noise, blasting, dust etc) do not have to be (re)assessed in the Environmental Statement and the EIA for the fence. In any event, in the circumstances of this case, I do not consider the criticism realistic. The effect of the quarrying operations on bats had been reduced to insignificant by the mitigation that had been put in place by the ROMP permission conditions, including the requirement of Condition 17 that the location of blasting operations be pre-approved by the Council. The fence would be more likely to affect the flight corridors of bats entering and leaving the Site. The cumulative effect, if any, is likely to be very minor. Mr Drew cannot be criticised for proceeding on that basis.
viii) Referring to (e.g.) the application for permission to carry out the ancillary works (paragraph 30 above) and the Officer's Report in respect of the application (paragraph 33 above), Mr Pugh-Smith submitted that it had been conceded that the perimeter fence was "necessary", so that operations on the Site for the winning and working of minerals would be unlawful without it. However, as I have indicated, fencing was not a requirement of the ROMP permission which, if it was necessary from a planning perspective, it would have been. SOQ have made it clear that they consider it is "necessary" to fence the quarry on health and safety grounds. However:
a) "Necessary" here is not used in an absolute sense, but rather as requiring an exercise to be undertaken balancing the health and safety risks against, amongst other things, planning factors such as any adverse impact on landscape and/or habitats and species. It is noteworthy that, initially, SOQ applied for planning permission on the basis that full perimeter fencing was "necessary" on health and safety grounds (paragraph 30 above).b) In any event, steps that are reasonably required for such health and safety purposes are not inevitably necessary for planning purposes. The two regimes are separate. If the responsible health and safety authority wishes to take enforcement action on health and safety grounds, then it is free to do so, irrespective of any stance taken by the planning authority.ix) In any event, again as Mr Brett submitted, the main reason for the Council taking no further enforcement action on 29 September 2016 was, clearly, because SOQ had indicated that it intended to make a retrospective planning application in respect of the fence, which would be required to be accompanied by an Environmental Statement and would be the subject of a full EIA including consultation. In line with national guidance, the Council considered that that would be the appropriate process for considering relevant factors including the impact of the fence on bats; it would be proportionate to allow SOQ time to make that application; and that process would enable the Council to impose conditions to regulate matters such as mitigation by way of landscaping and the length of time for which the fence would be authorised. It was open to the Council to consider that that process would better address its obligations under the Habitats Directive so as to fulfil regulation 9(3). The Council closely monitored the progress of the making of the application. It never indicated that it would not take enforcement action in respect of the fence – indeed, it reserved its right to take enforcement action in the future – only deciding that it would stay its hand if a planning application were to be made reasonably promptly. What was reasonable promptness, in these circumstances, was a matter for the Council itself.
x) In fact, an application, with a full Environmental Statement, was made on 11 January 2017. That statement is consistent with the basis upon which Mr Drew proceeded on 29 September 2016, namely that the adverse impact of the fence upon bats is insignificant. The Council's own ecologist has confirmed that to be the case, and in particular has confirmed that the fence will not adversely affect bat flight corridors at all, because of its limited height. As a result, Mr Pugh-Smith, rightly, abandoned his request for relief in the form of a mandatory order requiring the Council to take further enforcement action now. As Mr Blake indicated, the new evidence would make any error by Mr Drew on 29 September 2016 immaterial. I was unimpressed by Mr Pugh-Smith's submission that the conclusion of the Environmental Statement may not be confirmed after the full EIA. That may be so; but the Council cannot be criticised for deciding not to take immediate further enforcement action in respect of the fence, in circumstances in which, at present, there is no evidence that it will have any adverse effects on bats, or any other habitat or species. Certainly, the Council cannot be acting unlawfully in making such a decision.
Conclusion