EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lady Smith Lord Bracadale	[2013] CSIH 65A XA158/10 OPINION OF THE COURT delivered by LADY PATON in the Reclaiming Motion THE CAIRNGORMS CAMPAIGN AND OTHERS Appellants and Reclaimers; against THE CAIRNGORMS NATIONAL PARK AUTHORITY First Respondent: DAVALL DEVELOPMENTS LIMITED Second Respondent; TULLOCH HOMES LIMITED Third Respondent; AN CAMAS MOR DEVELOPMENTS LLP Fourth Respondent: _______________

Appellants: Sir Crispin Agnew QC; Drummond Miller LLP

First Respondent: Armstrong QC; Harper MacLeod LLP

Second Respondent: Findlay; Wright Johnston Mackenzie

Third Respondent: Findlay; Burness Paull & Williamsons

Fourth Respondent: Findlay; Shepherd & Wedderburn

3 July 2013

The Habitats Directive

[1] A European directive of 21 May 1992 (the Habitats Directive 92/43/EEC) seeks to conserve wild flora and fauna and their natural habitats in certain sites known as "European" or "Natura" sites. Article 6 thereof provides:

"1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature [known as the 'IROPI' test] the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."

[2] The directive was brought into effect in the United Kingdom by the Conservation (Natural Habitats etc) Regulations 1994 (the 1994 Regulations). Regulations 48 and 49 provide:

"48. - Assessment of implications for European site

(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which -

(a) is likely to have a significant effect on a European site in Great Britain ... (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives ...

(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site ...

(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given ..."

49. - Considerations of overriding public interest

(1) If they are satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature) [the 'IROPI' test], the competent authority may agree, subject to paragraph (1A), to the plan or project notwithstanding a negative assessment of the implications for the site ..."

The Cairngorms National Park Authority (CNPA, the first respondent) is a "competent authority" for the purpose of the regulations.

The Cairngorms National Park Authority (CNPA)

[3] The National Parks (Scotland) Act 2000 established inter alia the first respondent, namely the Cairngorms National Park Authority (CNPA). The membership of the CNPA comprises a maximum of twenty five persons, some nominated by the local authority (if appearing to the authority to have "knowledge or experience relevant to the functions of the National Park authority or the National Park"); some elected; and some directly appointed by the Scottish Ministers on the basis that they appear to the Scottish Ministers to have knowledge or experience relevant to the functions of the National Park authority or the National Park (Schedule 1 to the 2000 Act, in particular paragraphs 3, 5, and 6). The member must have no financial or other interest likely prejudicially to affect the person's performance as a member (paragraph 6(4)).

[4] The legislation's aims are set out in section 1 of the 2000 Act as being (a) to conserve and enhance the natural and cultural heritage of the area; (b) to promote sustainable use of the natural resources of the area; (c) to promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public, and (d) to promote sustainable economic and social development of the area's communities.

The Cairngorms National Park Local Plan 2010

[5] By resolution dated 29 October 2010 the CNPA approved and adopted a Local Plan 2010 for areas within Cairngorms National Park, including housing development proposals for Nethy Bridge, Carrbridge, An Camas Mor, and Kingussie. The housing allocations were accompanied by inter alia expectations of increased populations, proposals for appropriate sewerage and water provision, and the noting of possible dangers of pollution and deteriorated riverbanks with consequences for flora and fauna.

[6] Certain specific policies set out in the Local Plan, in particular Policy 1 (formerly Policy 2: the Lord Ordinary's opinion paragraphs [53], [128], and [224]) and Policy 12 (formerly Policy 13: the opinion paragraphs [171] and [222]) were applied. Those policies provide:

"POLICY 1

Natura 2000 Sites

Development likely to have a significant effect on a Natura 2000 site will be subject to an appropriate assessment in accordance with the Conservation (Natural Habitats etc) Regulations 1994. Where an assessment is unable to ascertain that a development will not adversely affect the integrity of the site, the development will only be permitted where:

(a) there are no alternative solutions; and

(b) there are imperative reasons of overriding public interest, including those of a social or economic nature [the 'IROPI' test] ...

POLICY 12

Water Resources

A Use of Resources

There will be a presumption against development which does not meet all of the following criteria: (1) minimises the use of treated and abstracted water; (2) does not result in the deterioration of the current or potential ecological status or prejudice the ability to restore water bodies to good ecological status; (3) treat surface water and foul water discharges separately and in accordance with SUDS Manual Ciria C697; (4) have no significant adverse impact on existing or private water supplies or wastewater treatment services.

B Flooding

There will be a presumption against development which does not meet all of the following criteria relating to flooding: (1) be free from significant risk of flooding; (2) does not increase the risk of flooding elsewhere; (3) does not add to the area of land that requires flood prevention measures; (4) does not affect the ability of the functional floodplain to store or move flood waters.

Note: Development in areas susceptible to flooding will require a developer-funded flood risk assessment, carried out by a suitably qualified professional ..."

[7] Paragraphs 2.8 and 2.18 of the Local Plan explain:

"2.8 Once adopted, the Local Plan will be used by the planning authorities within the Cairngorms National Park to assess planning applications for development. The planning authorities are the four local authorities as well as the [CNPA] when it acts as a planning authority in calling-in and determining planning applications ...

2.18 The planning authorities will use conditions and legal agreements, produced as the expense of the applicant, to ensure that consented developments comply with the Local Plan's policies ..."

[8] The Local Plan further explains:

"3.11 ... The planning authority will inform developers of any special requirements resulting from Natura interests or the appropriate assessment of the Local Plan during pre-application discussions or when the need for such requirements [is] recognised by the authority. The special requirements could include mitigation measures to avoid effects on Natura interests that would be imposed as conditions on planning consent, or particular information required by the planning authority to undertake an appropriate assessment of the specific development proposal ...

3.83 ... almost all proposals that involve water abstraction and wastewater treatment must comply with the requirements of [the 1994] Regulations ...

4.34 ... the identification of land in development plans should be effective and capable of development to meet the housing land requirement for a minimum of five years at all times ...

6.6 Development of [the housing] sites must comply with the policies of the Local Plan and any specific requirements for the site noted in the proposal text ..."

[9] In relation to Nethy Bridge, the Local Plan inter alia notes requirements to meet flood risks (page 124 at NB/H1, NB/H2) and retention of woodland to allow for movement of species (page 124 at NB/ED1). In relation to Carrbridge, the Local Plan inter alia refers to safeguarding habitats and a UK biodiversity action plan species (page 112 at C/H1). In relation to An Camas Mor, the Local Plan specifies that any development proposals require to be designed to the highest standards, not adversely affecting the integrity of the River Spey SAC [Special Area of Conservation] (page 82 at paragraph VI). In relation to Kingussie, the Local Plan notes that one area requires a detailed flood risk assessment (page 98 at KG/ED2).

The CNPA's assessment of the Local Plan

[10] In terms of Regulation 48 of the 1994 Regulations, the CNPA carried out an appropriate assessment of

"the likely impacts of the policies, proposals and land use allocations within the modified deposit Local Plan against the qualifying interest and conservation objectives of the Natura 2000 sites" (paragraph 1.1 of the appropriate assessment).

[11] Its conclusion in paragraph 1.1 was that:

"... with appropriate safeguards and mitigation the finalised Local Plan as modified will not adversely affect the integrity of any Natura site in the Cairngorms National Park."

[12] In their assessment, the CNPA emphasised the importance of "safeguarding policies". At pages 16 to 17, they stated:

"6.1 Having established which policies might have an impact on Natura 2000 sites, it is important to remember that the Local Plan also contains a number of policies to protect these sites principally through policies 1 and 2 ...

6.2 [Certain] policies aim to protect sites designated as Natura from inappropriate development. Other safeguarding policies aim to offer some degree of protection through consideration of various aspects of development including impact on other natural heritage sites, impact on biodiversity, impact of development on the wider landscape and its various features and design standards for all development.

6.3 Further safeguarding mechanisms will be provided through forthcoming supplement planning guidance on a topic basis, and will include guidance on such things as renewable energy, sustainable development, area-based masterplans and development briefs, and open space development.

6.4 In addition, there are various mitigation measures that can be employed to reduce potential impacts of proposals, and these would extend to planning conditions and the use of design statements with all applications ..."

[13] Pages 18 and 53 to 60 contain assessments of Natura sites (including Abernethy Forest, River Spey, An Camas Mor, Kingussie, Carrbridge, Nethy Bridge) applying the policies, design statements, and safeguarding and mitigation measures. For example, at page 18, in relation to Abernethy Forest, there is mention of avoiding deterioration of the habitats of or disturbance to capercaillie, osprey, and Scottish crossbill, concluding:

"Policy assessment: Effect on conservation objectives

Implementation of a variety of policies - identified in Table 3a - could in theory be likely to have a significant effect on this site. In practice, any development proposals will have to comply with [Policy 1], which protects Natura sites in accordance with the [1994 Regulations]. Hence the Local Plan will not detract from meeting the site's conservation objectives."

[14] Similarly at page 19 in relation to Nethy Bridge, the CNPA, having balanced up various factors, conclude:

"Conclusion on site integrity

Implementing the recommended conditions or mitigation will not detract from meeting the conservation objectives and thus site integrity will not be adversely affected."

[15] At pages 54 to 55, in relation to the River Spey, having specifically considered Atlantic salmon, freshwater pearl mussel, otter, and sea lamprey; the possible deterioration of water quality in the Spey; the possible effects on the function of flood plains and the modification of river banks; the abstraction of water from the Spey to provide drinking water for new developments, the CNPA note:

" ... In particular, research specific to adult freshwater pearl mussels identifies a sensitivity limit of 0.03 mg/l soluble reactive phosphorous to maintain the favourable conservation status of the species. The corresponding limits for juvenile freshwater pearl mussel, Atlantic salmon, or sea lamprey are not known. In practice, however, all development proposals will have to comply with [Policy 1], which protects Natura sites in accordance with the [1994 Regulations]. One of the ways this would be achieved is by only granting planning permission if it can be demonstrated that the 0.03 mg/l threshold for soluble reactive phosphorous in-river will not be exceeded as a result of the proposed development. In addition, compliance monitoring can be used to ensure that discharges of harmful chemicals do not increase in the future. In the longer term, in order to inform decisions on discharge consents, further research is needed into the tolerances of the qualifying species to concentrations of different chemicals, and also into the sources of these chemicals and the paths by which they reach the river. [And after a paragraph about the implications of new private sewage treatment systems, they continue] Provided that the safeguards identified in the two previous paragraphs are adhered to closely, implementation of this policy will not detract from meeting the site's conservation objectives ..."

[16] At page 56, when considering An Camus Mor, the CNPA note:

"In theory, developments in line with the proposals in An Camus Mor could lead to impacts on the qualifying species or their supporting habitats within this site if, during construction or subsequently, physical or chemical contaminants were released into the River Spey. Construction and development could also cause disturbance to otter. In practice, however, all development proposals will have to comply with [Policy 1], which protects Natura sites in accordance with [the 1994 Regulations]. One of the ways this would be achieved is, for applications that involve ground disturbance near to watercourses, identifying appropriate guidance for developers to follow to avoid releases of sediment or chemicals into watercourses during construction; to ensure that there is no potential for otter to become entangled in construction materials (eg overnight); and requiring otter surveys prior to submission of planning applications and designing developments to avoid damaging holts or disturbing these animals. Hence implementation of these proposals will not detract from meeting the site's conservation objectives ..."

[17] At page 56, 57, 59 and 60, a similar balancing exercise is carried out, weighing possibly prejudicial effects against safeguarding or mitigation measures, in relation to Kingussie, Carrbridge, and Nethy Bridge, with the same conclusion in each case. At pages 60 to 61 the cumulative effects of policies and proposals are considered as follows:

"Cumulative effects of supplying water to all the new developments proposed in the Plan

The appropriate assessment for the proposed new water supply for Badenoch and Strathspey will consider the effects of abstracting the water needed to supply the new development proposed in this Local Plan on the River Spey SAC. This assessment is not duplicated here. In the longer term, in order to inform decisions on future water abstractions, further consideration is needed of the effects of abstraction on water quantities in the Spey, whether abstraction-induced changes are likely to be mitigated or exacerbated by the effects of climate change, and the tolerances of the qualifying species to changes in water quantity.

The cumulative effects of the waste water treatment arrangements and their associated discharges associated with the new developments proposed in the Plan are considered with the effects of [Policy 12] above.

Conclusion on site integrity: Provided that Policies [1 and 12], and further detail in paragraphs 4.80 and 4.81 are implemented rigorously, implementing the policies and proposals will not detract from meeting the conservation objectives and thus site integrity will not be adversely affected ..."

[18] Ultimately, the CNPA concluded at page 63:

"9.3 The assessment concludes that the Cairngorms National Park Local Plan will not adversely affect the integrity of the Natura sites. However the assessment recognises that additional safeguarding and mitigation will be needed to safeguard the qualifying interests. These mitigations are set out in Table 5 and are in addition to the formal policy modifications set out in Table 1. Further detailed assessments will also be required for individual proposals at the planning application stage.

9.4 It is therefore concluded that with the modifications set out in Table 1 and 5 the policies and proposals of the Local Plan can be implemented without adversely affecting the integrity of any of the Natura 2000 sites within the Cairngorms National Park."

Appeal to the Court of Session

[19] The appellants appealed to the Court of Session in terms of section 238 of the Town and Country Planning (Scotland) Act 1997, seeking reduction of the CNPA's decision to adopt the plan. The case came before Lord Glennie. As noted in paragraphs [65] et seq, [71] and [163] et seq of the Lord Ordinary's opinion, there were challenges based on unlawfulness, Wednesbury unreasonableness, and a failure to give adequate reasons. Ultimately, the Lord Ordinary refused the appeal for the reasons he gave in his opinion dated 21 September 2012. The appellants now reclaim, solely in relation to their argument that the appropriate assessment was unlawful in that it postponed to a future stage in the planning process the CNPA's legal obligations under article 6.3 and 6.4 of the Habitats Directive, including making a determination whether the plan would adversely affect the integrity of Natura 2000 sites; if so, whether there were alternative solutions; and in the absence of alternative solutions, whether a housing allocation met the "IROPI" test, ie the test of "imperative reasons of overriding public interest", in terms of article 6.4 (cf Policy 1 above).

[20] The Lord Ordinary observed in paragraph [45] of his opinion:

"It should be noted that the Local Plan is for the period from 2007 to 2012. Another Local Plan taking the matter forward from 2012 is already under consideration. The Local Plan 2007 was only adopted more than half way through its intended lifespan. In consequence, even by the time it was adopted and by the time this appeal was brought, the issues raised in it were on the verge of becoming of academic interest only."

[21] Senior counsel for the appellants nevertheless maintained that the issues raised in the present appeal were of relevance for the next Local Plan. The outcome of the appeal would be a material consideration in the formulation of the next Local Plan. It would also be relevant to the grant of any planning permission.

Pleadings: Ground of Appeal 6

[22] In their written Grounds of Appeal, the appellants framed their sixth Ground of Appeal as follows:

"Ground of Appeal 6

The appellants contend that CNPA acted unlawfully in adopting the Local Plan without an adequate appropriate assessment in terms of Regulation 48 of The Conservation (Natural Habitats etc) Regulations 1994 having been carried out in respect of the potential cumulative effects of the settlements on the Spey SAC [Special Area of Conservation] and the other European Sites in the area. For example, the SEA [Strategic Environmental Assessment] (page 128 and 135) commented on the Kingussie and Nethy Bridge housing proposals and their potential effect on the Spey SAC and said 'Under the Habitats Directive, the Local Plan must be subject to an appropriate assessment to identify the implications for the conservation interests of the SAC'. The potential cumulative effects of the other house proposals on the Spey SAC were also noted in the SEA. The purported 'Appropriate Assessment' was not an adequate assessment that complies with the requirements of Regulation 48 and the Habitats Directive [92/43/EEC]. During the Inquiry the Reporters clearly considered it to be an inadequate assessment. In relation to (i) An Camas Mor [para 42.44] the Reporter refers to 'considerable uncertainty ... about environmental issues', (ii) Carrbridge the environmental issues are raised in paras 60.11, 60.12 & 60.13 where it is said 'the position on bio-diversity is not yet certain' and concludes at 60.21 'that biodiversity issues may now render that permission incapable of implementation', (iii) Nethy Bridge para 66.21 states that 'insufficient attention is paid in the text to ... biodiversity ... integral to achieving the objectives of CNPP 2007'. In those circumstances the CNPA ought not to have adopted said policies. Regulation 48(5) provides that an authority 'shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site'. The Assessment does not conclude that the plan will not adversely affect the integrity of the site, but only that if certain policies are complied with or monitoring is used that there may be no adverse effect. The Assessment is not an adequate assessment if it leaves matters still to be assessed in a subsequent planning application. Regarding the River Spey (page 53> of Assessment) it is accepted that there could be significant adverse effects on the Spey; it suggests that compliance with Policy 2 and compliance monitoring could be employed, but goes on to say that in the longer term, in order to inform decisions further research is required. In these circumstances it cannot be said that agreement to the Local Plan 'will not adversely affect the integrity of the site'. Similarly in relation to An Camas Mor (page 56), Carrbridge (page 58) and Nethy Bridge (page 59) the Assessment seeks to rely on Policy 2 and Guidance given to Developers, which it is hoped will be followed. Further, the Reporters note in the Inquiry Report at paragraph 8.9 in relation to Policy 2 Natura Sites 'the lack of any reference to the application of a precautionary principle in the context of Policy 2' & see para 8.10. Said proposals are inadequate to comply with said regulation in particular because it leaves over matters to be assessed at a later stage to ensure that the integrity of the site will not be adversely affected."

Submissions for the appellants

[23] Senior counsel for the appellants contended that the appropriate assessment insofar as relating to housing allocations at Nethy Bridge, Carrbridge, An Camas Mor and Kingussie was unlawful for the following reasons.

[24] The CNPA had in effect directed that the appropriate assessment should take place at the later planning application stage. The authority had looked at possible effects on European sites, particularly the River Spey, but had then not assessed those effects, simply directing that no planning permission should be granted which would adversely affect the integrity of the site. That approach was unlawful in terms of Commission v United Kingdom (C-6/04) [2005] ECR I-09017.

[25] In particular, the housing allocations for the four areas were "specific proposals" in terms of the Local Plan. Those proposals had to be assessed. There were specific housing allocation targets, and if those allocations could not go ahead, the local authority would lose a number of houses which they were required to deliver. There would therefore be pressure upon the local authority to make sure that a particular allocation passed the Habitats test. If the allocation were not permitted to go ahead, the Local Plan provided no alternatives. That was why it was essential that an assessment "in a broad sense" should take place at the local plan stage (and not be left until the later planning permission stage). It was entirely possible for the CNPA to make a broad assessment at the local plan stage about whether the housing allocation would pass the Habitats test.

[26] Paragraph 4.34 of the Local Plan provided that the plan had to be "effective and capable of development to meet the housing land requirement for a minimum of five years at all times". But without a broad assessment at the local plan stage, it was impossible to know whether this Local Plan satisfied that definition. What the CNPA had done was unlawful as (a) it was contrary to European case-law as set out in Commission v United Kingdom cit sup; and (b) even within the domestic law planning system, one had to be able to conclude that what was in the plan was "deliverable".

[27] For each of the four areas, it was known how many houses were to be built: 40 in Nethy Bridge, 117 in Carrbridge, 1,500 in An Camas Mor (and therefore approximately 4,500 people), 75 in Kingussie. If it was not known at local plan stage whether there was compliance with the Habitats Directive, one was not in a position to consider (a) alternative solutions; and (b) whether the IROPI test (namely imperative reasons of overriding public interest under Article 6.4) was met. In the present case, the CNPA had stopped short of deciding if there would be an adverse impact on the integrity of the site, and had thus not considered whether there was a need to consider alternative solutions or locations. An example of an alternative solution, in senior counsel's submission, was as follows:

"Area A allocated for housing and Area B allocated for industrial with appropriate assessment left until the planning applications. Area A passes the integrity test and houses are built; Area B then fails the integrity test. Had the integrity test been undertaken at the local plan stage, it would have been found that Area A would pass for both houses and industrial use, whereas Area B would only pass for housing. Therefore had 'alternative solutions' been considered at the local plan stage, then Area A could have been allocated for industrial use and Area B for housing thus fulfilling the Local Plan requirements."

[28] It was therefore important to make the assessment in broad terms on the information available at the earlier local plan stage. It would be unsatisfactory to have refusals on the ground of failure to comply with the Habitats Directive at the later planning application stage. No-one could say whether any planning application would pass the Habitats test.

[29] Reference was made to Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (C-127/020) [2004] ECR I-07405, the Advocate General at paragraphs 53, 60, 69, 73, 85, 95-102, 107, 111; and the court's judgment at paragraphs 38, 43-44, 50-61; Commission v United Kingdom [2005] ECR I-09017, the Advocate General at paragraphs 26, 39, 41-49, 51; R (on app Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-748 the court at paragraph 51 et seq; Smith v Secretary of State for Environment, Transport and Regions [2003] Env LR 32, paragraph 33. There was sufficient information available about the number of households, sewage, water, and the impact of people on the locality. The CNPA should therefore have assessed the possible impact on the integrity of the site at the level of detail which existed in the Local Plan. There was no certainty (in the Waddenzee sense) about the water extraction, the sewage discharge, juvenile freshwater pearl mussel, atlantic salmon, sea lamprey, and otter. All the appropriate scientific research information and data had not been obtained. The CNPA's approach resulted in the assessment relying upon a subsequent assessment (the approach which, according to senior counsel's submission, was disapproved of in Commission v United Kingdom cit sup). The CNPA were unable to say that the new developments, taken together, would not adversely affect the River Spey. Thus although their conclusion was that the integrity of the European site would not be adversely affected, they had in effect "left over" the assessment to a later date. Although they had identified issues such as nutrients, waste water, surface water, flood plains, river banks, and water abstraction, they did not know whether or not they passed the Habitats test. In effect they relied upon future assessment, which was not lawful. (If, however, the court did not accept the classification as "unlawful", it was "unreasonable" to stop at a stage which prevented the authority from looking at alternative solutions.)

[30] Nothing in the decision in Feeney v Oxford City Council [2012] EWCA Civ 852 contradicted the appellants' position. In Feeney, there had been a detailed assessment of all the material available. Certain issues were identified as being unable to be dealt with at the Core Strategy stage, and requiring to be assessed at the next level. It was legitimate to provide that these issues would be dealt with at a later stage, because that was not postponing everything to the future by saying "any planning application has to pass the Habitats test".

[31] The Lord Ordinary had erred in his approach in paragraph [138] et seq. There had to be an assessment commensurate with the level of detail available. The Lord Ordinary had erred in failing to appreciate that what was required was as detailed an assessment as was possible at the level of the plan. A much more detailed assessment should have been made.

[32] If the appeal court were to consider that the matter was not acte clair, a reference to the European Court of Justice would be appropriate. The question at issue might properly be:

"What should be understood by the phrase 'commensurate to the relative precision of the plans at any particular stage' (paragraph [92] of Feeney); and the phrase 'adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan' (paragraph [49] of Commission v United Kingdom)."

[33] In other words, what level of assessment was it legitimate to leave to the next planning stage? To what extent could one legitimately avoid making an assessment by referring on to an assessment to be made at the next stage? The case would have to be put out for a hearing By Order to discuss appropriate procedure for the reference.

Submissions for the first respondent

[34] Senior counsel for the first respondent invited the court to refuse the reclaiming motion.

The Local Plan

[35] The Local Plan set out policies to protect the environment. The plan identified policies with which subsequent planning applications had to comply. The plan identified issues raised by each site, and gave possible ways of dealing with these issues. Senior counsel for the appellants had not shown that the assessment had left something out of account, such as a particular species, site, or issue.

[36] For example, policy 12 at page 34 ("Water Resources") set out a presumption against development which did not meet certain criteria (set out in paragraph [6] above). Paragraphs 3.82, 3.83, and 3.87 were concerned with low impact solutions, water abstraction, and monitoring.

[37] As for housing, senior counsel pointed out that the settlement boundaries were indicative only.

·      An Camas Mor was not identified in the Local Plan as a site contributing to the housing land required for the life of the plan.

·      Both Nethy Bridge and Carrbridge had obtained outline planning permission for housing development before the issuing of the Local Plan.

·      Kingussie did not have planning permission, and was to provide only 75 houses during the planning period.

[38] In relation to An Camas Mor, permission for development would only be given if the planning authority was satisfied that proposals had been designed to the highest standards that did not adversely affect the integrity of the River Spey SAC (page 82 paragraph VI). There was also a provision that the biodiversity of the site should be conserved and enhanced (page 161). As for Kingussie, much of the relevant land was not on a flood plain.

Appropriate assessment

[39] The CNPA worked in partnership with Scottish National Heritage (page 7 paragraph 4.1). They laid down policies (pages 7 to 14). They set out the type of site and the conservation objective. There was no suggestion that a site or a conservation objective or a qualifying interest (such as otter, sea lamprey, salmon, or freshwater pearl mussels) had been omitted. The CNPA then made an assessment. They worked out safeguarding policies such that the plan would not have a negative impact on the environment. They reached the conclusion that, provided that the policies were adhered to, there would not be an adverse effect on the integrity of the site.

The law

[40] In Waddenzee cit sup, the Advocate General's opinion stated:

"95 ... It should first be noted that the habitats directive does not lay down any methods for carrying out an appropriate assessment ...

97 This assessment must, of necessity, compare all the adverse effects arising from the plan or project with the site's conservation objectives. To that end, both the adverse effects and the conservation objectives must be identified ..."

[41] There had been no suggestion by senior counsel for the appellants that the first two sentences of paragraph 97 were not complied with. The legitimacy of safeguarding policies and a stage-by-stage procedure was recognised in the authorities (Hart District Council v Secretary of State for Communities and Local Government [2008] 2 P & C R 16; Feeney v Oxford City Council cit sup). There could be a detailed assessment at a later stage. As was noted in paragraph 49 of the opinion of the Advocate General in Commission v United Kingdom:

"The United Kingdom Government is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure."

[42] The Lord Ordinary clearly set out the key points at paragraphs [138] to [139]. In particular:

·      The appropriate assessment need not provide a "conclusive answer" to all the questions legitimately raised about the potential for significant adverse effects on the integrity of the site.

·      The decision-maker is entitled to take into account not only likely impacts, but also measures to prevent such impacts arising or to mitigate their effect.

·      By setting out policies in the Local Plan which would govern the treatment of future planning decisions, the CNPA could be certain that such development would not adversely affect the integrity of the site.

·      If the appropriate assessment identified and assessed risks inherent in development on the sites, and the Local Plan laid down policies to eliminate or mitigate such risks with a requirement that any planning permission would only be granted if it was in line with the relevant policies, then development would not adversely affect the integrity of the sites.

[43] If the court were nevertheless to decide against the first respondent and were minded to quash any part of the plan, the case should be put out for a hearing By Order.

Submissions for the second, third and fourth respondents

[44] Mr Findlay adopted the submissions for the first respondent and invited the court to refuse the reclaiming motion.

(1) Preliminary issues

[45] There were four preliminary issues.

1) Despite their senior counsel's denial, the appellants' position was truly that the CNPA's approach had been unreasonable in the Wednesbury sense. That was a high test to satisfy.

2) A development plan should not be construed as if it was a contract or a statute (Tesco Stores Ltd v Dundee City Council 2012 SLT 739, Lord Reed at paragraph [19]). Matters of interpretation, or the identification of the question at issue, were questions of law. But the answers to the questions were matters of judgment. Senior counsel for the appellants had not identified any question of interpretation requiring this court's determination as a matter of law (cf the observations of the Lord Ordinary at paragraph [75] of his opinion).

3) As the Lord Ordinary noted, correctly, at paragraph [77] of his opinion, the National Park Plan, the Local Plan, the assessment and the various reports, required to be read as a whole.

4) The Lord Ordinary dealt with the giving of reasons at paragraphs [82] to [87] of his opinion, referring to Wordie Property Co Ltd v Secretary of State 1984 SLT 345 at page 348. However there was no obligation, when carrying out an appropriate assessment, to give reasons, only to carry out the appropriate assessment.

(2) Evans v Secretary of State for Communities and Local Government [2013] EWCA Civ 115

[46] In Evans cit sup the Court of Appeal decided that a challenge to the Secretary of State's decision should be made by applying the Wednesbury test, not by applying some other test such as a heightened form of scrutiny. While Evans concerned the screening direction of the Secretary of State pursuant to regulation 6 of the Environmental Impact Assessment Regulations, the decision provided guidance in the present case. The Court of Appeal rejected any suggestion that the appropriate test was a more intensive form of scrutiny or a proportionality test.

(3) No point of principle in issue

[47] Counsel submitted that:

(i) There was no challenge to the Conservation (Natural Habitats etc) Regulations 1994. It was not suggested that the Regulations did not properly implement the directive.

(ii) There was no suggestion that the CNPA had misunderstood the test derived from Waddenzee. So the challenge was limited to misapplication of the appropriate principles.

(iii) It was not suggested that Feeney was not correctly decided on its facts. Safeguarding provisions were therefore lawful. It was legitimate to put some matters off for further assessment at a future date. It was not suggested that such a stage-by-stage policy would not satisfy the directive.

(iv) There was no suggestion that the CNPA had not carried out an appropriate assessment. There was no criticism of the method of assessment, or that some relevant issue or interest had not been identified.

(4) The reasonable authority test
The appellants' case was in effect that, in the particular circumstances of this case, no reasonable authority could have carried out the assessment as the first respondent had. But the appellants had failed to satisfy that test.

(5) An appropriate assessment
There was some guidance in statute and caselaw about the requisites for an appropriate assessment.

Plan as a whole: The assessment should be of the plan as a whole, and in its final form (Feeney v Oxford City Council [2011] EWHC 2699 (Admin) paragraph [89]).

Safeguarding conditions: In terms of regulation 48(6), an appropriate assessment could therefore have regard to conditions or restrictions (including policy 1). That supported the idea of having a safeguarding condition, which would apply at every stage: for example, a detailed condition relating to construction which would avoid sediment entering the River Spey.

General duty to provide assessment: The duty to provide an appropriate assessment was a very general one. Waddenzee paragraphs 95, 97 and 111 gave no particular guidance.

Latitude in carrying out assessment: The foreword to "Managing Natura 2000 sites - The Provisions of Article 6 of the Habitats Directive 92/43/EEC" - gave the CNPA considerable latitude when carrying out the appropriate assessment: pages 5, 29, 36, and 37. Mitigation measures (such as policy 1) and alternative solutions could be taken into account. But there was no legal requirement to look at alternative solutions. In legal terms, alternative solutions became relevant only when it was "proposed to consider approving a damaging plan or project" (page 37). There was no obligation to consider alternatives earlier. The CNPA had followed that approach.

[48] There was nothing in "Managing Natura 2000 sites" or in "Assessment of plans and projects significantly affecting Natura 2000 sites" demonstrating that the appropriate assessment carried out by the CNPA was not a legitimate appropriate assessment. There was nothing to suggest that the approach adopted by the CNPA was unreasonable.

[49] In paragraphs 44 to 49 of the Advocate General's opinion in Commission v United Kingdom, the Advocate General sought to justify the requirement that there should be an appropriate assessment at the development plan stage. The Advocate General was not directly considering the content of an appropriate assessment. The content was a matter for the judgment of the relevant authority, set against that background. The CNPA had approached their task within the ambit of reasonable judgment.

[50] There was no support in case-law or in the general guidance for a requirement to assess broadly at the local plan stage whether or not a particular housing allocation would pass the Habitats test as senior counsel for the appellants contended. The relevant authority had to consider conservation objectives and impacts on the environment, and to form a view. The authority did not have to provide solutions.

[51] Ultimately, the matter was one for the authority. Only if "no reasonable authority" would have taken the approach adopted was there any error.

[52] In the context of housing supply, senior counsel for the appellants had emphasised that the authority had to guarantee delivery of a certain amount of housing. But there was no challenge that the CNPA's approach to decision-making in the context of housing supply was flawed (in contrast with Feeney, where there was such a challenge: paragraphs 9 and 97). The authority were entitled to take a risk in relation to the deliverability of housing. But they were not entitled to take a risk in relation to damaging the sites. The relevant requirements of the 5-year housing plan would be satisfied by the authority's approach. There was no legal obligation governing housing (as there was governing the European sites). There might be several reasons why proposals for housing allocation might not be fulfilled. But housing proposals were permitted to be uncertain (in contrast with the Natura requirements). The appellants' approach to housing was not only inaccurate in relation to the numbers, but was also wrong in principle.

[53] The proper question was as follows. Was what was being done serving the objective of an appropriate assessment? The assessment had to be read as a whole, with due regard to safeguarding policies (pages 16 and 17 of the assessment). In relation to Nethy Bridge, problems had been identified in relation to Abernethy Forest (page 19 of the assessment). A reasoned judgment was given dealing with the problems, working with probabilities and estimates. It was quintessentially a matter of judgment whether the final conclusion was that a development would detract from the integrity of the site. Such planning judgment could only be attacked on Wednesbury grounds. In the present case, the Wednesbury test had not been met. The members of the CNPA were well experienced. The CNPA's role was environmental. The ultimate outcome in both Feeney and the present case was that an important issue was left undetermined, but safeguards were put in place to ensure that there was no adverse impact on the integrity of the site. All of the policies were relevant (the Local Plan page 15, box). One of the policies was to avoid damage to the River Spey SAC. Thus at page 82, relating to An Camas Mor, it was provided:

"VI Permission for development will only be permitted if the planning authority is satisfied that proposals have been designed to the highest standards that do not adversely affect the integrity of the River Spey SAC."

[54] At page 98, relating to Kingussie, it was noted that most of the relevant sites were situated on a hill, and therefore there were no specific points to make in relation to flooding, whereas for Carrbridge at page 112 C/ED2, flooding was relevant:

"A detailed flood risk assessment may be required to accompany any further development proposals for this site."

[55] Also at page 124, in relation to Nethy Bridge, it was noted that:

"A detailed flood risk assessment will be prepared to accompany any further development proposal for this site." (NB/H1).

"A flood risk assessment may be required in support of any further planning application or reserved matters." (NB/H2).

[56] There was also a provision that:

"... Development on this site will retain enough woodland to allow for movement of species ..." (NB/ED1).

[57] An examination of the Local Plan, together with the submissions made on behalf of the first respondent, demonstrated that an appropriate assessment had been made in a proper manner and had achieved its purpose under the directive.

[58] Senior counsel for the appellants had sought to suggest that, because one could calculate the water and the sewerage, one should be able to reach a conclusion or a solution. But to require a solution at that stage was not in accordance with planning procedures or the directive. It was for the developer to come up with solutions at the safeguarder stage. If ultimately it proved unnecessary to provide such a solution, there was no point in going into that degree of detail at the earlier stage.

[59] Counsel for the second, third and fourth respondents submitted that there was no need for a reference to the European Court of Justice.

[60] If the court were against the respondents on the merits, the court was invited not to exercise its discretion to quash the plan. The extent of any quashing should be left open until after the judgment had been issued, as each case was different and depended on its facts: cf Walton v Scottish Ministers 2012 SLT 1211, Lord Carnwath at paragraph [139], Lord Hope at paragraph [155].

Discussion

[61] In our opinion, despite the appellants' contention that their challenge is one of "unlawfulness", their challenge when elaborated in submissions is truly one of Wednesbury unreasonableness, namely that no reasonable authority complying with the directive, the regulations, and the case-law, would have produced an appropriate assessment such as that produced in October 2010, and accordingly that no such authority would have adopted the Local Plan.

[62] When examining the appropriate assessment with the test of Wednesbury unreasonableness in mind (cf the approach adopted by the Court of Appeal in relation to the Environmental Impact Assessment Regulations in Evans v Secretary of State for CLG [2013] EWCA Civ 115) we note the following.

(1) The CNPA, who carried out the appropriate assessment, comprise specialised and expert members with particular knowledge or experience relevant to the functions of the CNPA or the national park: paragraph [3] above. They are appointed on the basis that they have no financial or other interest which might prejudice their performance as members. The CNPA's aims are as set out in paragraph [4] above.

(2) There is no statutory guidance prescribing what must be done by way of an appropriate assessment. As the Advocate General explained in Waddenzee [2004] ECR I - 07405:

"95 It should first be noted that the habitats directive does not lay down any methods for carrying out an appropriate assessment ...

97 ... It will often be difficult to encompass all adverse effects in an exhaustive manner. In many areas there is considerable scientific uncertainty as to cause and effect. If no certainty can be established even having exhausted all scientific means and sources, it will consequently be necessary also to work with probabilities and estimates. They must be identified and reasoned ...

98 Following an appropriate assessment, a reasoned judgment must be made as to whether or not the integrity of the site concerned will be adversely affected. In that respect it is necessary to list the areas in which the occurrence or absence of adverse effects cannot be established with certainty and also the conclusions drawn therefrom ...

102 ... According to [Article 6(3)], the authorising authority can grant authorisation only when it is certain that the integrity of the site concerned will not be adversely affected. Consequently, remaining risks may not undermine this certainty ...

107 However the necessary certainty cannot be construed as meaning absolute certainty since that is almost impossible to attain. Instead, it is clear from the second sentence of Article 6(3) of the habitats directive that the competent authorities must take a decision having assessed all the relevant information which is set out in particular in the appropriate assessment. The conclusion of this assessment is, of necessity, subjective in nature. Therefore the competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty ..."

The court gave the following opinion:

"52 As regards the concept of 'appropriate assessment' within the meaning of Article 6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment ...

56 It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned ...

61 ... under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field ..."

The foreword to "Managing Natura 2000 sites - The Provisions of Article 6 of the Habitats Directive 92/43/EEC" - afforded the CNPA considerable latitude when carrying out the appropriate assessment: pages 5, 29, 36, and 37. Safeguarding and mitigation measures (including Policy 1 and Policy 12) may be taken into account. There was no legal requirement to look at alternative solutions: they become relevant only when it is "proposed to consider approving a damaging plan or project" (page 37), and thus there is no obligation to consider alternatives earlier. The content of the appropriate assessment was a matter for the judgment of the CNPA: the Advocate General in Waddenzee did not directly consider or prescribe the content of an appropriate assessment.

(3) The appropriate assessment dated October 2010 drew attention to problems and issues relating inter alia to:

·      otter

·      salmon

·      sea lamprey

·      capercaillie

·      water purity

·      water extraction

There is no suggestion that a problem or issue has been omitted: cf paragraph 97 of the Advocate General's opinion in Waddenzee.

(4) Planning procedure is a staged process (in contrast with the one-off grant of a licence in Waddenzee). In particular, stages currently include:

·      a Local Plan

·      an outline plan

·      a detailed plan.

A problem or issue raised in a local plan may be highlighted and discussed, and a safeguarding or mitigating provision inserted, such that planning permission would not be granted at a later stage unless and until that problem or issue had been resolved in compliance with the Habitats Directive as brought into operation by the Conservation (Natural Habitats etc) Regulations 1994. For example, one of the policies adopted seeks to avoid damage to the River Spey SAC (Special Area of Conservation). At page 82 of the Local Plan 2010, relating to An Camas Mor, it is provided:

"VI Permission for development will only be permitted if the planning authority is satisfied that proposals have been designed to the highest standards that do not adversely affect the integrity of the River Spey SAC."

At page 112 C/ED2, for Carrbridge, it was stated:

"A detailed flood risk assessment may be required to accompany any further development proposals for this site."

At page 124, relating to Nethy Bridge NB/HI provided:

"A detailed flood risk assessment will be prepared to accompany any further development proposal for this site."

While NB/H2 provided:

"A flood risk assessment may be required in support of any further planning application or reserved matters."

Finally, NB/ED1 was in the following terms.

"... Development on this site will retain enough woodland to allow for movement of species ..."

Such safeguarding or mitigating provisions are legitimate: cf Hart District Council v Secretary of State for Communities [2008] 2 PC & R 16; Feeney v Oxford City Council [2012] EWCA Civ 852 particularly paragraph 92; Commission v United Kingdom [2005] ECR I-09017 the Advocate General at paragraph 49:

" ... Many details are regularly not settled until the time of the final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. This assessment is to be updated with increasing specificity in subsequent stages of the procedure."

See too Waller LJ at paragraph 33 of Smith v Secretary of State for the Environment, Transport and the Regions [2003] Env LR 32:

"In my view there is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision maker will act competently. Constraints must be placed on the planning permission within which future details can be worked out, and the decision maker must form a view about the likely details and their impact on the environment ..."

Thus the level of detail required will be greater at the detailed planning permission stage than at the local plan stage. There is no obligation (established either in case-law or in other general guidance) to assess broadly at the local plan stage whether or not a particular housing allocation would pass the Habitats test. The relevant authority had to consider conservation objectives and impacts on the environment, and to form a view. The authority does not have to provide or approve solutions.

(5) The Local Plan will not be rendered ineffective or illegal if the proposed housing allocations at Nethy Bridge, Carrbridge, An Camas Mor, and Kingussie, are not fulfilled to the letter, for two reasons:

i. Some of the allocations are merely aspirational. The allocation for An Camas Mor is simply a hope in the future, not a concrete allocation.

ii. Some of the allocations are not aspirational (for example Kingussie, 37). But even if not proceeded with, the local authority may achieve allocations in other areas. At worst, even if the housing allocations are not achieved, that does not render the local plan ineffective or unlawful: cf Feeney v Oxford City Council [2012] EWCA Civ 852 at paragraph 96.

[63] In the result, we are not persuaded that the CNPA's appropriate assessment was one which no reasonable authority, complying with the 1994 Regulations, would have produced. We agree with the Lord Ordinary, at paragraph [3] and paragraphs [71] to [81] of his opinion, that the appropriate approach to the matter is one of judicial review, and that having adopted a judicial review approach, the CNPA's appropriate assessment cannot be said to be one which no reasonable authority would have produced in the circumstances. It was, therefore, open to the CNPA to adopt a Local Plan which relied on that assessment.

[64] Finally, we are not persuaded that a reference to the European Court of Justice is necessary.

Decision

[65] For the reasons given above, we refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dated 21 September 2012 refusing the appeal. We reserve any question of expenses.