Dianne Smyth v The Secretary of State for Communities and Local Government Ms Elizabeth Archer Arthur and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Kitchin,Lord Justice Richards |
| Judgment Date | 05 March 2015 |
| Neutral Citation | [2015] EWCA Civ 174 |
| Docket Number | Case No: C1/2013/3708 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2015 |
and
[2015] EWCA Civ 174
Lord Justice Richards
Lord Justice Kitchin
and
Lord Justice Sales
Case No: C1/2013/3708
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE PATTERSON
CO/8108/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gregory Jones QC and Mr David Graham (instructed by Leigh Day Solicitors) for the appellant
Mr James Maurici QC (instructed by The Treasury Solicitor) for the respondent
Mr Rhodri Price Lewis QC (instructed by Ashfords LLP) for the interested parties
Hearing dates: 17 and 18 FEBRUARY 2015
Introduction
This is an appeal by the Appellant, Mrs Smyth, against the decision of Patterson J — [2013] EWHC 3844 (Admin)— in which the Judge dismissed an application by Mrs Smyth under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision dated 20 June 2012 of the Inspector (John Wilde C.Eng M.I.C.E.), on behalf of the Secretary of State, to grant planning permission for a development of 65 residential dwellings on land at Sentry's Farm, Exminster, Devon EX6 8DY ("the development site"). The Inspector granted planning permission in respect of the development site on an appeal by the developer ("Bellway") against a decision of the local planning authority, Teignbridge District Council ("the Council"), to refuse planning permission.
Mrs Smyth is Chair of "Get Involved Exminster" ("GIE"), an association of local residents which was a party to the planning inquiry before the Inspector and objected to the proposed development.
The development site is located close to the Exe Estuary Special Protection Area for birds ("the SPA"), which is also designated as a Site of Special Scientific Interest. The SPA incorporates the Dawlish Warren Special Area of Conservation ("the SAC"). The entire SPA is an area protected under EU law, in particular (so far as is relevant on this appeal) for the purposes of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive"). The development site is only about 350m from the closest part of the SPA, an area known as the Exminster Marshes which is managed as a nature reserve by the RSPB.
The principal ground of appeal in this Court has focused on the question whether the decision of the Inspector to grant planning permission complied with the requirements set out in Article 6(3) of the Habitats Directive, as incorporated into domestic law in regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"). It was common ground that the Regulations simply reflect the relevant provisions of the Habitats Directive, so the argument before us proceeded by way of direct reference to the terms of the Habitats Directive, and it is not necessary to refer further to the Regulations in any detail.
Although the Council refused planning permission for the development, that was for reasons unrelated to the application of the Habitats Directive. Pursuant to the Habitats Directive, the Council carried out a screening assessment by its officer, Mary Rush, and an "Appropriate Assessment", also by Ms Rush. The net effect of these assessments was that, having regard to certain mitigation measures, the Council's view was that the development proposal would have no significant adverse impact on the SPA and the SAC. The national agency with responsibility for nature conservation, Natural England, endorsed Ms Rush's assessment.
At the planning inquiry, the Inspector heard from an expert ecologist (Mr Goodwin) called by Bellway, whose evidence was to the same effect. No other expert ecology witness gave evidence. Having reviewed the material available to him, the Inspector was persuaded by the assessments of Ms Rush, Natural England and Mr Goodwin, and concluded that there was no risk of significant harm to the SPA or the SAC associated with the implementation of the development.
The Appellant challenged this assessment on her application to Patterson J, as Ground 2 of her application to the Judge ("the Habitats Directive Ground"). In a careful and thorough review, the Judge rejected that challenge: see paras. [144]–[176] of the judgment. The Appellant appeals on that issue to this Court.
In the course of her complaint under the Habitats Directive Ground, the Appellant makes a number of subsidiary complaints about findings made by the Inspector and upheld by the Judge. I will address below what appear to be the main subsidiary complaints, albeit for the most part they were touched on only very lightly by Mr Jones QC in his oral submissions for the Appellant. However, the observation of Mr Maurici QC for the Secretary of State that a "scattergun" approach had been adopted by the Appellant is a fair one. Where an appellant adopts a "scattergun" approach and presents a range of sub-complaints under the umbrella of a main Ground of appeal, but without proper focus in submissions, as here, it is not necessary or appropriate for this Court "to examine every pellet in detail" ( R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920, at [80] per Simon Brown LJ).
As further grounds of appeal in this Court, the Appellant says that the Inspector misapplied national policy contained in paragraph 119 of the National Planning Policy Framework ("NPPF") (Ground 4 of the Appellant's application to the Judge: "the Policy Ground") and failed to give adequate reasons for his decision (Ground 5 of the Appellant's application to the Judge: "the Reasons Ground"). These grounds are, in the main, parasitic upon the Appellant's principal ground of appeal based on the Habitats Directive. The Judge rejected these grounds at paras. [198]–[217] and [218]–[221] of her judgment, respectively.
The Appellant also advances distinct grounds of appeal (covered by Ground 3 of her application to the Judge: "the CIL Grounds"), that the Inspector failed to apply regulation 122 of the Community Infrastructure Levy Regulations 2010 ("the CIL Regulations") and/or failed to have proper regard to the effect of regulation 123 of the CIL Regulations, in accepting that the developer could make a contribution to required ecological mitigation measures in respect of the SPA and the SAC by way of a payment under a contribution agreement made under section 106 of the 1990 Act. The Judge rejected these grounds at paras. [178]–[197] of her judgment.
The legislative framework
The developer, Bellway, applied for planning permission to the Council, as the designated local planning authority under the 1990 Act. This meant that the Council, in taking its decision, was the competent authority for the purposes of the Habitats Directive and the Habitats Regulations to check whether the proposed development properly complied with the requirements of those instruments.
As mentioned above, the Council was satisfied that the proposed development would be compatible with the requirements of the Habitats Directive, but refused planning permission for other reasons. Bellway appealed to the Secretary of State, who delegated the determination of the appeal to the Inspector. This meant that the Inspector, in taking his decision, became in turn the competent authority for the purposes of the Habitats Directive and the Habitats Regulations to check for compliance with those instruments. As he explained in his Report, the Inspector understood this very well.
Article 6(2) and (3) of the Habitats Directive provides as follows:
"(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."
It is relevant to note at this point that Article 6(3) provides for two stages of assessment: (i) under the first sentence, a screening assessment whether a plan or project is "likely" to have a significant effect on a protected site (for discussion of the precise meaning of the word "likely", see below); and, if such an effect cannot be ruled out at the screening stage, (ii) an "appropriate assessment", under the second sentence.
In this case, the Council, in its screening assessment, thought that the proposed development would be likely, in combination with other projects or plans, to have a significant effect on the SPA, and therefore proceeded to make an "appropriate assessment". In its "appropriate assessment", the Council came to the conclusion that the proposed...
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