Canterbury City Council v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 14 May 2019 |
| Neutral Citation | [2019] EWHC 1211 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3625/2018 CO/3900/2018 |
| Date | 14 May 2019 |
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and
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[2019] EWHC 1211 (Admin)
Mr Justice Dove
Case No: CO/3625/2018
AND
CO/3900/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Pereira QC and Isabella Tafur (Instructed by Peter Kee of Canterbury City Council) for the Claimant
David Elvin QC and Zack Simons (Instructed by the Government Legal Department) for the Defendant
Mark Lowe QC and Robin Green (instructed by DMH Stallard LLP) for the Interested Party
Robert McCracken QC and Horatio Waller (instructed by Emma Montlake of the Environmental Law Foundation) for the Claimant
David Elvin QC and Zack Simons (instructed by Government Legal Department) for the 1 st Defendant
Ruben Taylor QC (instructed by Andrew Piatt) for the 2 nd Defendant
No representation for the Interested Party
Hearing dates: 6–8th March 2019
Approved Judgment
Introduction
This judgment addresses the claims in two cases. They have in common a similar error of law in the decision taking process, related to the question of whether or not an Appropriate Assessment of the effects of the developments proposed in each case was required pursuant to regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) which transposes into domestic law the requirements of Article 6 of Directive 92/43/EEC (“the Habitats Directive”). The details of the error of law are identified below, but it suffices to observe at this stage that the error is conceded by the Secretary of State for Housing, Communities and Local Government, hereafter referred to in each case as the Defendant. In both cases there are additional grounds upon which it is contended that the Defendant erred in law and which are set out below.
The structure of this judgment is as follows. Firstly, the factual context of each of the claims is set out together with a brief rehearsal of the grounds upon which the claim is brought. Thereafter, the judgment examines the error of law which is in common in each of these cases, and the legal principles relevant to whether or not in the light of that error the decision should be quashed. The judgment then examines the relevant law applicable to the other grounds upon which each claim is brought, before proceeding to an examination of the merits of each claim.
I would wish to place on record my gratitude to all of the lawyers for their contributions towards the preparation and presentation of these cases. The collation of the relevant papers, along with the careful and focused written and oral submissions on all sides enabled a very efficient hearing and have assisted greatly in my task in preparing this judgment.
The first claim (the “Canterbury case”)
On the 16 th June 2015 the Interested Party submitted a hybrid application for the following form of development
“Full: Demolition of existing Dwelling house in Conservation Area and two other dwellings, change of use of lagoon to allotments, ecological habitat and footpath link and improvements along Bullockstone Road.
Outline: Development of a new mixed use neighbourhood with up to 800 dwellings, commercial and community development within a local centre, spine road, estate roads, other means of access, pedestrian and cycle links, improvements to existing footpath, sustainable urban design drainage measures, landscaped noise bund/ earthworks and boundary treatments, public open space, highway related and utilities infrastructure. Approval is sought for means of access from Canterbury Road and Bullockstone Road.”
The Claimant, Canterbury City Council (“CCC”) failed to determine the planning application within the prescribed period, and the Interested Party appealed to the Defendant. Amongst the seven reasons why, after the submission of the appeal, CCC resolved that planning permission should be refused were the likelihood of a severe adverse impact on the highway network, including inadequate and unsafe works to Bullockstone Road, together with a conflict with the Habitats Regulations. On the 27 th June 2016 the Defendant recovered the decision for his own determination. During the run up to the public inquiry into the appeal matters moved on in relation to the highway proposals incorporated as part of the appeal, and, akin to the Inspector's report, this judgment focuses on the proposals as they stood at the time of the public inquiry rather than examining the evolution of those proposals prior to that. The application was accompanied by an Environmental Impact Assessment (“the EIA”) prepared pursuant to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.
The EIA covered a considerable amount of environmental information. Of particular interest so far as the present case is concerned was Chapter 10, which covered Ecology and Nature Conservation. The EIA, and in particular Chapter 10, were presented to the public alongside a Habitats Regulations Assessment Screening Statement. The contents of both of these documents mirrored each other in so far as they provided information about potential impacts upon European sites. The documentation noted that there were a number of European sites within 10 kilometres of the development proposal. Each of those sites was examined in detail in relation to both its particular nature conservation interest, the reason for its designation, and the potential for the development to have an impact upon it both during the construction phase of the development as well as in its operational phase after the proposed dwellings were in residential use.
Within the Habitats Regulations Assessment Screening Statement three potential types of environmental impact were examined. Firstly, the impact on water quality at two European sites with hydrological links to the development site, namely the Thanet Coast and Sandwich Bay SPA/Ramsar and The Swale SPA/Ramsar. The Habitats Regulation Assessment Screening Statement concluded that given the effective implementation of a Construction Environmental Management Plan, which would regulate the surface water drainage strategy and appropriate treatment of waste water, “no significant effects to the Thanet Coast and Sandwich Bay SPA/Ramsar are considered likely”. The Swale SPA/Ramsar, being a greater distance from the proposed development was also not considered to have any likely significant effects.
The second type of potential environmental impact examined was that of recreational pressure arising from an estimated 1,920 new residents in the approximately 800 new residential dwellings proposed. It is unnecessary to rehearse the conclusions reached in relation to European sites others than the Thanet Coast and Sandwich Bay SPA/Ramsar, save to say that in respect of all other European sites no significant effects were anticipated by the Habitats Regulation Assessment Screening Statement.
In relation to the Thanet Coast and Sandwich Bay SPA/Ramsar the document recorded as follows:
“Thanet Coast and Sandwich Bay SPA/Ramsar
5.1.31 Should an increase in visitor numbers to Thanet Coast and Sandwich Bay SPA/Ramsar arise as a result if the Lower Herne Village development, this would have the potential to disturb the bird populations which contribute to the special interest of this designated site.
5.1.32 Despite the generous provision of accessible greenspace as part of the proposed scheme, it is acknowledged that a proportion of the new residents are still likely, on occasion to visit the Thanet Coast and Sandwich Bay for the purpose of recreation, owing to the different type of recreational experience the coastline can offer.
5.1.33 As detailed in the HRA screening statement for the draft local plan (AMEC, 2013), it is anticipated that the presence of management plans for those European sites impacted by recreational activities, such as Thanet Coast and Sandwich Bay, will mitigate the potential adverse effect on increased numbers of recreational visitors associated with the Project. If necessary, this will involve restricting public access from sensitive areas of the sites or at sensitive times of the year through, for example, the provision of wardening, improved waymarked trials and signage.
5.1.34 In light of the above, it is understood that the draft local plan, once adopted, will be supported by the Strategic Access, Mitigation and Monitoring Plan for European designated sites in the Canterbury District. This Plan will be applied to new residential development within the zone of influence of those Natura 2000 sites designated for their bird populations and identified as being vulnerable to an increase in recreational pressure. This will ensure that no likely significant effects will result from development proposed under the local plan.
…
5.5.36 As there may be some minor use of the Thanet Coast and Sandwich Bay SPA by residents of the Lower Herne Village, despite the generous on-site provision of accessible greenspace, there remains the potential for disturbance upon the bird populations it supports.
5.1.37 The developers of the Project site are therefore committed to providing the necessary level of financial contribution (appropriate to the scale of development and its distance from the Thanet Coast and Sandwich Bay SPA/Ramsar) towards its on-going access management. This will be in accordance with the Strategic Access, Mitigation and Monitoring Plan for the Thanet Coast and Sandwich Bay SPA, as and when formally adopted. This...
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