Neutral Citation No:  NIQB 16
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
(i) An interpretation ground - that there was a misinterpretation of the relevant policy by the Commissioner.
(ii) That there was a failure to give adequate reasons.
Legislative framework and policy context
"(1) The Department must formulate and co-ordinate policy for securing the orderly and consistent development of land and the planning of that development.
(2) The Department must—
(a) Ensure that any such policy is in general conformity with the regional development strategy;
(b) Exercise its functions under subsection (1) with the objective of furthering sustainable development and promoting or improving well-being.
(3) For the purposes of subsection (2)(b) the Department must take account of—
(a) Policies and guidance issued by—
(i) The Department for Regional Development;
(ii) The Office of the First Minister and deputy First Minister;
(b) Any other matter which appears to it to be relevant."
(a) Planning Policy Statement 2 Natural Heritage- "PPS2" (2013).
(b) Planning Policy Statement 18 "Renewable Energy-"PPS18" (2009).
(c) Strategic Planning Policy Statement for Northern Ireland –"SPPS" (2015).
"(1) It is the duty of every public body, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions.
(2) In complying with subsection (1), a public body must in particular have regard to any strategy designated under Section 2(1).
(3) Conserving biodiversity includes—
(a) In relation to any species of flora or fauna, restoring or enhancing a population of that species;
(b) In relation to any type of habitat, restoring or enhancing the habitat.
(4) The Department must issue guidance containing recommendations, advice and information for the assistance of public bodies in complying with the duty under subsection (1)."
This legislation also refers to the biodiversity strategy Section 2 and biodiversity lists in Section 3. Section 3(3) reads:
"Without prejudice to Section 1(1) and (2), a public body must –
(a) Take such steps as appear to the body to be reasonably practicable to further the conservation of the species of flora and fauna and type of habitat included in any list published under this section; or
(b) Promote the taking of others of such steps."
Policy NH5 of PPS2 was issued in 2013 and it deals with habitats, species or features of natural heritage importance. The operative part of this policy states as follows:
"Planning permission will be granted for development proposal which is not likely to result in the unacceptable impact on, or damage to known:
... priority habitats;
... priority species;
... active peatland;
A development proposal which is likely to result in an unacceptable adverse impact on, or damage to, habitats, species or features may only be permitted where the benefits of the proposed development outweigh the value of the habitat, species or feature.
In such cases, appropriate mitigation and/or compensatory measures will be required."
PPS2 contains the following general provision in the opening of the policy document:
"The planning policies of this Statement must … be read together and in conjunction with the relevant contents of development plans; other planning policy publications … The provisions of these policies will prevail unless there is other overriding policy or material considerations that outweigh them and justify a contrary decision."
"Development that generates energy from renewable resources will be permitted provided the proposal, and any associated buildings and infrastructure, will not result in an unacceptable adverse impact on:
(c) Biodiversity, nature conservation or built heritage interests.
Where any project is likely to result in unavoidable damage during its installation, operation or decommissioning, the application will need to indicate how this will be minimised and mitigated, including details of any proposed compensatory measures, such as a habitat management plan or the creation of a new habitat. The matter will need to be agreed before planning permission is granted.
The wider environmental, economic and social benefits of all proposals for renewable energy projects are material considerations that will be given significant weight in determining whether planning permission should be granted."
"6.191 It is recognised that many other important habitats, species and features of natural heritage, which deliver ecosystem services, fall within or outside a designated site. To ensure international and domestic responsibilities and environmental commitments with respect to the management and conservation of biodiversity are met, the habitats, species and features mentioned below are material considerations in the determination of planning applications.
6.192 Planning permission should only be granted for a development proposal which is not likely to result in the unacceptable adverse impact on, or damage to known:
- priority habitats;
- priority species;
- active peatland;
- ancient and long-established woodland;
6.193 A development proposal which is likely to result in an unacceptable adverse impact on, or damage to, habitats, species or features listed above may only be permitted where the benefits of the proposed development outweigh the value of the habitat, species or feature. In such cases, appropriate mitigation and/or compensatory measures will be required."
The SPPS also relates to renewable energy at paragraph 6.224 to 6.231 as follows:
"6.224 Development that generates energy from renewable resources will be permitted where the proposal and any associated buildings and infrastructure, will not result in an unacceptable adverse impact on the following planning considerations:
- Biodiversity, nature conservation or built heritage interests.
6.225 The wider environmental, economic and social benefits of all proposals for renewable energy projects are material considerations that will be given appropriate weight in determining whether planning permission should be granted.
6.231 Where any project is likely to result in unavoidable damage during its installation, operation or decommissioning, developers will be required to indicate how such damage will be minimised and mitigated, including details of any compensatory measures, such as a habitat management plan or the creation of a new habitat. These matters will be agreed before planning permission is granted."
Arguments made by the parties
(i) Mr Nardell argued that on a correct reading of PPS2 NH5 and the corresponding provisions of the SPPS, there are not three stages to assessment of impacts on priority habitat but two as he said both sides agreed in their written and oral submissions in the appeal.
(ii) Mr Nardell submitted that there was little controversy over the first question which is whether the development proposal would be likely to result in unacceptable impact or damage to priority habitats.
(iii) He submitted that if so the second stage involves a balancing exercise under which proposed mitigation and/or compensation measures are taken into account in assessing and weighing the benefits of the proposal and the value of the habitat which is sustaining adverse impact or damage.
(iv) Mr Nardell argued that the policy makes no provision for a third stage and that this is the logical and sensible reasoning of the policy.
(v) Mr Nardell drew on the context of a development proposal which has as a forerunner an environmental statement and also requires an applicant to address proposals for mitigation and compensation measures such as in this case the management plan.
(vi) Mr Nardell also pointed to the fact that the policy affirms that wider environmental, economic and social benefits of renewable energy proposals are material considerations that will be given significant/appropriate weight in determining whether permission should be granted.
(vii) It was argued that the Commissioner's interpretation involves severing mitigation from compensatory measures however this is artificial.
(viii) Mr Nardell argued that the Commissioner's argument that compensatory measures consideration falls outside the policy is wrong and the policy provides no guidance for it and in essence he was saying this would lead to uncertainty in decision making.
(ix) Mr Nardell said that the decision-maker is not saved by the overarching omnibus conclusion at paragraph 58 as this is too late in the balancing exercise hence he argued that the Commissioner clearly fell into error in relation to interpretation and that this is not saved by an overall view of the decision.
(x) In relation to inadequacy of reasons Mr Nardell criticised the decision in terms of the lack of explanation as to the favouring of the NIEA evidence over that of Dr Ross. He said that this met the test in the agreed authorities as the person affected by the decision could not easily recognise why they had lost the case.
(i) He submitted that the Commissioner was correct to apply a three stage test and that this was clearly founded in the language of policy in particular in NH5.
(ii) Mr McLaughlin argued for a disjunctive view of the three parts to NH5 arguing compensatory or migratory measures comes as a third stage.
(iii) He drew an analogy with the Habitats Directive whereby compensatory and mitigating measures are viewed in sequence. He argued strongly that mitigation and compensatory measures do not feature as part of the balancing exercise.
(iv) Mr McLaughlin referred to a planning decision of Re John Ritchie in which the three stage test appeared to have been applied and affirmed.
(v) Mr McLaughlin also referred to the Northern Ireland biodiversity strategy which he said was the umbrella provision when looking at priority habitats.
(vi) Overall Mr McLaughlin argued that the Commissioner had properly applied the three stage test but in any event even if she had made an error of law she had considered the compensatory measures by virtue of paragraph 58 of her decision.
(vii) Dealing with the reasons challenge, Mr McLaughlin referred to the operative parts of the decision which he said clearly elucidate the decision-maker's view in relation to compensatory measures and as such he said that this would not meet the standard for impugning the decision on the basis of reasons.
Ground 1: The interpretation point
"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."
Paragraph  of Lord Reed's judgment also reads:
"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
Ground 2: The reasons challenge
" It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority.
 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."
(a) So far as priority habitats are concerned the development will in fact result in net substantial habitat improvements which are unlikely to be achieved without the development.
(b) The blanket bog habitats on site have been drained, mown, flailed, cut over and sheep grazed and, until these typical agricultural practices are removed and/or further controlled, the blanket bog habitat will continue to be inactive and is likely to degrade further.
(c) The development will provide a valuable vehicle for delivering enhancement/improvement at degraded blanket bog and wet heath habitat and contributing to Northern Ireland's habitat action plan targets.
(d) It is the case for the appellant that the residual effects of the development, taking account of mitigation measures which can be secured by condition, and also taking account of offset measures, are such that the development would certainly be acceptable in terms of policy NH5 and PPS2, Policy RE1 and PPS18 and paragraph 6.192-3 of the SPPS. That is not to acknowledge that it would not have been unacceptable without such measures, but that argument does not need to be made.
(e) In addition the appellant proposes nature conservation enhancement measures which mean that development will bring a net major conservation benefit to the site.
"If the Commissioner comes to the opinion that the peatland is not active, it is considered that the habitat remains subject to protection as wet heathland and blanket bog under SPPS and NH5 of PPS2. Under this element of the policy it may be appropriate to consider the relevant compensatory measures. The conclusions of NIEA … consider that the compensatory arrangements are inadequate, and do not outweigh the probable impacts of the proposal."
"At one point the Commissioner asked whether proposed mitigation and compensation were triggered only once it was concluded that benefits outweigh them – that is, after the policy balancing exercise has been undertaken. Mr Simmons for the Council submitted that consideration of mitigation and compensation is required once impacts are found to be unacceptable. Mitigation was relevant to the net harm to be put into the scales, and compensation measures were also put into the scales. I agreed."
"I concluded at paragraph 121 that the overall package of habitat improvements at Barr Cregg is assessed to be over 4.5 times more than the areas of degraded habitat lost to the proposed development, and more (1.86 times more) than would be advised adequate biodiversity off-setting using the DEFRA (2012) calculation method. It can be concluded that the implementation of the proposed HRMP would result in overall benefit and improvement of blanket bog conditions."
The Commissioner's decision
"The second question that must be considered under policy NH5 is whether the benefits of the proposed development outweigh the value of the priority habitats. The proposed development as described and the respective application forms comprises the wind farm, passing bays and access track. The compensation and enhancement measures proposed in the outline habitat restoration and management plan are intended to off-set the development and cannot reasonably be considered to be part of it; they are something additional. Consequently these measures cannot be taken into account in assessing the second test within Policy NH5."
"… the Council does not dispute that there would be wider environmental, economic and social benefits and I consider it appropriate to attribute these substantial weight."
These are set out in some detail at paragraph 12 of the ruling as follows:
- The Strategic Energy Framework (SEF) document issued by the then Department of Enterprise, Trade and Investment in 2010 indicated that 40% of Northern Ireland's energy consumption should be derived from renewable resources by 2020. The expected installed capacity of the Barr Cregg Wind Farm is 14 megawatts which would contribute 1.26% towards the SEF target at 40%.
- The proposal would meet the electricity needs of 11,000 homes per annum.
- The potential reduction in CO2 emissions as a result of the proposed development would be up to 20,000 tons per annum.
- There would be a reduction of fossil fuel dependency and a contribution to the security of domestic energy supply within Northern Ireland.
- The capital spend associated with the construction phase of the proposed development is estimated at £21.5m with £7.7m planned to be spent in Northern Ireland with local suppliers and contractors being used, where possible.
- The construction and operational phases would result in the creation and sustainment of jobs.
- Rates would be payable annually; at current rates this would constitute a contribution of £3.5m over 25 years.
- Landowner rents would be payable over a 27 year period.
"Consequently, the wider benefits of the proposal do not outweigh the value of the Northern Ireland priority habitats that would be damaged."
"As the benefits of the development do not outweigh the value of the Northern Ireland priority habitat, the third matter to be considered under Policy NH5, the requirement for appropriate mitigation and/or compensatory measures is not triggered. Accordingly, the Council has sustained its third reason for refusal based upon paragraph 6.192 of the SPPS, Policy RE1 of PPS18 and Policy NH5 of PPS2."
"I have concluded that there are substantial environmental, economic and social benefits associated with the proposed wind farm to which I have attached appropriate weight. However, contrary to the view of the appellant these benefits even when taken together with the outline measures for compensation/enhancement do not outweigh the unacceptable adverse impact and damage that the proposed development would cause to blanket bog and upland heath which are Northern Ireland priority habitats. Accordingly appeal one must fail."
In conducting this exercise it is clear to me that there are two stages rather than three to the relevant consideration namely assessment of impact and a balance of impact against benefit as follows:
i. The first question is whether the proposal would be likely to result in unacceptable adverse impact on or damage to priority habitats. This was not controversial and counsel agreed that mitigation measures could be taken into account at this stage.
ii. If there is unacceptable adverse impact the second stage is reached. This involves a balancing exercise.