Cairngorms Campaign and Others v Cairngorms National Park Authority [Court of Session Inner House Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 03 July 2013 |
| Neutral Citation | [2013] CSIH 65 |
| Date | 03 July 2013 |
| Court | Court of Session (Inner House) |
| Docket Number | No 4 |
Court of Session Inner House Extra Division
Lady Paton, Lady Smith, Lord Bracadale
Town and country planning - Local plan - Appropriate assessment in terms of the Conservation (Natural Habitats etc) Regulations 1994 - Whether no reasonable authority complying with the Regulations would have adopted the local plan on the basis of the appropriate assessment - Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/2716), regs 48, 49
The Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/2716) ('the 1994 Regulations') brought into effect the Habitats Directive 92/43/EEC. Regulation 48 provides, inter alia, "(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." Regulation 49(1) provides, "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 competent authority may agree, subject to paragraph (1A), to the plan or project notwithstanding a negative assessment of the implications for the site."
On 29 October 2010, the Cairngorms National Park Authority ('CNPA') approved and adopted a Local Plan 2010 for areas within the Cairngorms National Park, including housing development proposals for Nethy Bridge, Carrbridge, An Camas Mor and Kingussie. They carried out an appropriate assessment in terms of reg 48 of the 1994 Regulations. The Cairngorms Campaign and others appealed to the Court of Session seeking reduction of the CNPA's decision to adopt the plan. The appeal was refused, on 21 September 2012. The appellants reclaimed in relation to their argument that the CNPA acted unlawfully in adopting the local plan without an adequate appropriate assessment in terms of reg 48.
It was argued for the appellants that the CNPA had in effect directed that the appropriate assessment should take place at the later planning application stage. It had simply directed that no planning permission should be granted which would adversely affect the integrity of the European sites rather than carrying out an assessment of the possible effects which it had identified. As a result of its approach, it had also failed to consider whether there was a need to consider alternative solutions or locations.
It was argued for the first respondent that the CNPA had worked out safeguarding policies which, provided that they were adhered to, would mean that there would not be an adverse impact on the integrity of the site. The legitimacy of such an approach and a stage-by-stage procedure was recognised in the authorities. A detailed assessment could be carried out at a later stage.
In addition, it was argued for the second, third and fourth respondents that the appellants' position was truly that the CNPA's approach had been unreasonable in the Wednesbury sense. They had failed to satisfy that test.
Held that: (1) the appellants' challenge was 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 (para 61); (2) the content of the appropriate assessment was a matter for the judgment of the CNPA, which comprises specialised and expert members with particular knowledge and experience relevant to its functions (para 62); (3) 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 1994 Regulations (para 62); (4) the CNPA's appropriate assessment could not be said to be one which no reasonable authority would have produced in the circumstances and it was therefore open to the CNPA to adopt the local plan which relied on that assessment (para 63); and reclaiming motion refused.
The Cairngorms Campaign and others appealed to the Court of Session in terms of sec 238 of the Town and Country Planning (Scotland) Act 1997 (cap 8), seeking reduction of the Cairngorms National Park's decision to adopt a local plan for areas within the Cairngorms National Park. The Lord Ordinary (Glennie) refused the appeal, on 21 September 2012 ([2012] CSOH 153; 2012 GWD 36-732). The appellants reclaimed.
Cases referred to:
Associated Provincial Picture Houses Ltd v Wednesbury CorporationELRUNK [1948] 1 KB 223; [1947] 2 All ER 680; 63 TLR 623
Commission v UK (C-6/04) [2005] ECR I-9017; [2006] Env LR 29
Feeney v Oxford City CouncilUNK [2011] EWHC 2699; [2011] All ER (D) 196 (Oct)
Feeney v Oxford City CouncilUNK [2012] EWCA Civ 852
Landelijke Vereniging tot Behoud van de Waddenzee and anr v Staatssecretaris van Landbouw, Natuurbeheer en VisserijECASUNKUNK (C-127/02) [2004] ECR I-7405; [2005] All ER (EC) 353; [2005] 2 CMLR 31; [2005] Env LR 14; [2004] NPC 136
R (on the application of Evans) v Secretary of State for Communities and Local Government and orsUNK [2013] EWCA Civ 114
R (on the application of Hart District Council) v Secretary of State for Communities and Local Government and ors sub nom Hart District Council v Secretary of State for Communities and Local GovernmentUNK [2008] EWHC 1204; [2008] 2 P & CR 16; [2009] JPL 365
R (on the application of Wells) v Secretary of State for Transport, Local Government and the RegionsECASUNKUNK (C-201/02) [2004] ECR I-723; [2005] All ER (EC) 323; [2004] 1 CMLR 31; [2004] Env LR 27; [2004] NPC 1
Smith v Secretary of State for the Environment, Transport and the Regions and orsUNKUNK [2003] EWCA Civ 262; [2003] Env LR 32; [2003] 2 P & CR 11; [2003] JPL 1316
Tesco Stores Ltd v Dundee City CouncilUNKUNK [2012] UKSC 13; 2012 SC (UKSC) 278; 2012 SLT 739; [2012] 2 P & CR 9; [2012] 13 EG 91; [2012] PTSR 983; [2012] JPL 1078
Walton v Scottish MinistersUNKUNK [2012] UKSC 44; 2013 SC (UKSC) 67; 2012 SLT 1211; [2013] 1 CMLR 28; [2013] Env LR 16; [2013] PTSR 51; [2013] JPL 323
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345
Textbooks etc. referred to:
Cairngorms National Park Authority, Cairngorms National Park Local Plan (Cairngorms National Park Authority, Grantown-on-Spey, 2010), policies 1, 12; p 98, KG/ED2, p 112, C/ED2, C/H1, p 124, NB/ED1, NB/H1, NB/H2, paras 2.18, 2.18, 3.11, 3.83, 4.1, 4.34, 6.6; pp (Online: http://cairngorms.co.uk/park-authority/about-us/publications?publicationID=265) (25 October 2013))
European Commissioner and Director-General for the Environment, Assessment of Plans and Projects Significantly Affecting Natura 2000 Sites: Methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EEC (Office for Official Publications of the European Communities, Luxembourg, 2002) (Online: http://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm (25 October 2013))
European Commissioner and Director-General for the Environment, Managing Natura 2000 Sites: The provisions of Article 6 of the 'Habitats' Directive 92/43/EEC (Office for Official Publications of the European Communities, Luxembourg, 2000), pp 5, 29, 36, 37 (Online: http://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm (25 October 2013))
The case called before an Extra Division, comprising Lady Paton, Lady Smith and Lord Bracadale, for a hearing.
At advising, on 3 July 2013, the opinion of the Court was delivered by Lady Paton-
Opinion of the Court-
[1] A European directive of 21 May 1992 (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.
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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.
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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...
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