Enterprise Hangars Ltd v Fareham Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] EWHC 2060 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4047/2022 |
[2023] EWHC 2060 (Admin)
Mr Justice Lane
Case No: CO/4047/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms P Pattni (instructed by Lawdit Solicitors) for the Claimant
Mr O Capildeo (instructed by Southampton, Fareham & Havant Legal Partnership) for the Defendant
Hearing date: 13 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Are there badgers at Solent Airport? The defendant, having carried out its own inspection, concluded that their presence is reasonably likely. It is common ground that, as a result, the claimant needed to provide a habitat survey/assessment concerning badgers, when making its application to the defendant, as local planning authority, for permission to undertake development at the Airport comprising nine mixed-use live/work hangar buildings for the aviation sector.
The defendant has refused to provide the claimant's advisor with access in order to undertake the assessment. The lack of an assessment was one of the reasons why the defendant refused the application for planning permission.
The claimant contends that the defendant's refusal to give it access was unlawful. The claimant seeks an order quashing the decision to refuse and a mandatory order requiring the defendant to give the claimant access in order to carry out the survey/assessment.
At the hearing on 13 July 2023, the claimant was represented by Ms Pattni and the defendant by Mr Capildeo. I am grateful to them both for the high quality of their respective written and oral submissions.
SOLENT AIRPORT AND THE DAEDALUS VISION
Solent Airport, as it is now called, is located in a part of the defendant's area known as Daedalus. According to the defendant's “Daedalus Vision and outline strategy” (“the Vision”), the defendant had, for many years, through its local plan, recognised Daedalus as being the most significant commercial development area in the borough of Fareham. The defendant accordingly committed itself, as one of its corporate priorities, to work with others to deliver a thriving aviation-led employment area, supported by a viable airfield.
In March 2015, the defendant acquired 369 acres of land at Daedalus, mainly comprising the airfield itself and two development areas to the east and west. As part of this acquisition, the defendant “developed its Vision, together with a series of objectives designed to achieve it”.
The Vision was formally adopted in October 2015, after engagement with stakeholders and a two-month period of public consultation. According to the Vision, the defendant's objectives were to unlock the potential of the airfield's land and infrastructure assets through new commercial development; realise the potential for developing an increasing corporate/commercial aviation activity; ensuring the airfield was financially sustainable; further improving the infrastructure and facilities at the airfield; maintaining a safe, secure, efficiently managed and environmentally suitable airfield; and generating a sense of local pride by making Daedalus an attractive location for businesses and their employees, for users of its facilities and for the local community, and to be a good neighbour.
In the defendant's 2018 update of the Vision, we find the following:-
“In 2015, there was an expectation that new businesses and developers would be seeking to acquire sites on a plot by plot basis to build their own premises. Whilst this is still likely to happen in some cases, there has been a clear shift in demand from potential occupiers due to changing market confidence and economic uncertainties. The preference from prospective businesses is now biased towards taking occupational leases on pre-built, speculative units, or working with developers on bespoke turnkey facilities.
In order to respond to the changing demand, the Council has undertaken to deliver speculative units to rent/buy, both airside and non-airside. While this does transfer the “development risk” to the council, it also provides an opportunity to accelerate the delivery of jobs and secure a long-term revenue stream for the council. By approaching developments on an industry-standard basis, the investment will be future-proofed, should the council wish to sell the asset.”
PLANNING APPLICATION AND REQUESTS FOR ACCESS
The claimant made its planning application in March 2022. In support, the claimant submitted an ecological report, dealing with the presence of badgers on the application site. The report, carried out by a consultant, involved him using high-powered binoculars to look at the site because it was not possible to obtain access. In his assessment, the consultant did not note any evidence of badger occupation “although the managed grassland areas could be considered to provide a potentially suitable foraging resource for urban badgers”. The consultant concluded that the site had “moderate potential for foraging and commuting badgers”.
Hampshire County Council was a statutory consultee on the planning application. In an e-mail of 15 March 2022, the County Council's senior ecologist noted that access to the site had not been available and that the assessment was therefore carried out “behind the fence line”. In view of this, the senior ecologist said it was “not clear how evidence of badgers in the form of latrines, well-worn paths, holes, etc could have been identified and therefore I request that a visit to the site is arranged and the results are submitted”.
On 22 March 2022, the claimant sent an e-mail to Mr Francis, the Airport Manager, requesting access for the ground survey. The claimant's e-mail said that the inspection could take place before operational hours, as the consultant's office was close by.
Mr Francis forwarded the request to Mark Wyatt, copying in Sarah Ward. Mark Wyatt was the defendant's Planning Officer, who was handling the planning application. Sarah Ward was the defendant's Head of Strategic Sites.
On 26 March 2022, Mr Francis sent an e-mail to the claimant. This said “if your surveyors can supply some dates and times then we can fit in with the operations team”.
On 28 March, however, Sarah Ward sent an email to Richard Jolley, the defendant's Head of Planning and Regeneration, and to Steve Farndell, the defendant's Head of Asset Management. It is common ground that Mr Jolley is in overall charge of both planning and asset management.
Ms Ward's e-mail said: “The applicant is asking for access to the site in order to progress his planning applications. We are not going to sell him the site and don't want the development on our land. I am minded to refuse. What is your view?”
Ms Pattni points out that, at this time, no planning issues were being raised. This will be relevant in connection with one of the procedural matters raised by the defendant.
On 31 March 2022, Mr Francis e-mailed the claimant, as follows:-
“Unfortunately there has been some confusion with approvals. Whereas the planning department would have no issues with the inspection, the landowner does not give consent to this request and therefore denies any access. As landowner, they have already advised that they will not sell the land required for this development.”
The reason for the defendant's stance is to be found at paragraph 33 of its detailed grounds of defence:-
“The Defendant has …repeatedly advised the Claimant that it will not sell the land for the proposed residential use as it does not form part of the proposed Vision. The Defendant is of the view that selling land on a piece-meal basis at this time could have an adverse effect on wider plans”.
On 27 April 2022, the claimant directed to Councillor Woodward, the Leader of the Council, a request to conduct the badger survey by means of a drone. Councillor Woodward e-mailed on 20 May 2022 to say as follows:-
“You have no right to access private property without the land owner's consent. That consent has not been given. The same applies to using a drone, which given this is an airport, is expressly forbidden. It is of no significance with due respect to Hampshire County Council what any officer of that authority's ecology team may suggest as they have no jurisdiction over the Airport”.
In the light of this, the claimant explored whether the issue of a badger survey could be made the subject of a condition, if planning permission were granted.
This thinking was informed by ODPM Government Circular: biodiversity and geological conservation – statutory obligations and their impact within the planning system (Circular 06/2005). Part IV deals with the conservation of species protected by law. As a result of the Protection of Badgers Act 1992, this includes badgers. Paragraphs 123 and 124 of the Circular concern the 1992 Act. Amongst other things, the likelihood of disturbing a badger sett, or adversely affecting badgers' foraging territory, is capable of being a material planning consideration.
Paragraph 99 provides that it is essential that the presence or otherwise of protected species, and the extent that they may be affected by the proposed development, is established before the planning permission is granted, otherwise all relevant material considerations may not have been addressed in making the decision. Thus, the need to ensure ecological surveys are carried out should therefore only be left to coverage under planning conditions in exceptional circumstances. There is then is the following important caveat:-
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