Lee Valley Regional Park Authority v Epping Forest District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 13 April 2015 |
| Neutral Citation | [2015] EWHC 1471 (Admin) |
| Date | 13 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4557/2014 |
[2015] EWHC 1471 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand/
London WC2A 2LL
Mr Justice Dove
CO/4557/2014
Mr G Jones QC and Mr D Graham (instructed by Lee Valley Regional Park Authority) appeared on behalf of the Claimant
Ms M Thomas (instructed by Epping Forest District Council) appeared on behalf of the Defendant
Mr P Village QC and Mr N Helme (instructed by DHP Law LLP trading as Duffield Harrison) appeared on behalf of the Interested Party
On 21 June 2011 the interested party applied for a substantial glass house development on their land which lies within the defendant's administrative area as well as within the Lee Valley Regional Park and the Green Belt. To the north of that application site lies existing glass houses which are operated by the interested party. On 6 November 2011 the defendants responded to an EIA screening request which had been submitted as part and parcel of the interested party's application. I shall set out the detail of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 a little later in this judgment. Having concluded that the development was not Schedule 1 development, the screening opinion which was adopted by the defendant as follows:
"Schedule 2.1(b) includes water management projects for agriculture where the area of works exceed 1 hectare. The application includes provision and use of water storage ponds in excess of this area and therefore this aspect of the development falls within Schedule 2 and must be assessed under Schedule 3 of the regulations.
Schedule 3 sets out the criteria that should be considered in assessing whether the development is likely to have significant environmental effects and therefore require an EIA.
I have considered the development therefore in relation to Schedule 3 and noted that the site falls within a 'sensitive location', being within 2km of a Special Protection Area under the EC Birds Directive 79/409, Ramsar, and SSSI and Local Wildlife Sites within the Lee Valley Regional Park.
I have therefore assessed whether the provision and use of the proposed storage ponds within the development would be likely to have significant environmental impacts, in relation to this sensitive location. The application included a phase 1 Habitat and Ecological Scoping Report and the information in this report has been taken into account in my assessment.
The proposals include remodelling of an existing lake which although outside any protected area is within 1km of the Lee Valley SPA and Ramsar site. The lake provides habitat suitable for 3 SPA Citation species and has been noted to support 2 of them (Gadwall and Shoveler).
Given that the proposals do not propose removal of the lake but rather include remodelling this lake and creating a new additional storage pond to the north such that there is potential for a net increase in habitat provision for the relevant species, I do not consider that the impact of the development is likely to be significant.
Given the nature of the proposals, the previous and existing uses of the land and the position of the development within the landscape it is not considered that the proposals will have wider significant environmental impacts and therefore the Council considers that the proposed works in totality are not EIA development and an EIA is not therefore required."
Part of the development proposed lay over a water body created relatively recently by mineral workings as is apparent from the quotation which I have just cited from the screening opinion. That water body is more often than not referred to as Langridge Scrape. The water body, as the screening opinion noted, provided habitat for wild foul, in particular for Gadwall and Shoveler ducks which form part of the nature conservation interest for which the nearby Lee Valley SPA had been designated. The designation description provides as follows:
"The Lee Valley SPA is located to the north-east of London, where a series of wetlands and reservoirs occupy about 20km of the valley. The site comprises embanked water supply reservoirs, sewage treatment lagoons and former gravel pits that support a range of man-made semi-natural and valley bottom habitats. These wetland habitats support wintering wildfowl, in particular Gadwall Anas strepera and Shoveler Anas clypeata, which occur in numbers of European important. Areas of reedbed within the site also support significant numbers of wintering Bittern Botaurus stellaris…
This site qualifies under Article 4.1 of the Directive (79/409/EEC) by supporting populations of European importance of the following species listed on Annex 1 of the Directive…
Over winter:
Gadwall Anas strepera, 515 individuals representing at least 1.7% of the wintering Northwestern Europe population (5 year peak mean 1991/2 — 1995/6)
Shoveler Anas clypeata 748 individuals representing at least 1.9% of the wintering Northwestern/Central Europe population (5 year peak mean 1991/2 — 1995/6)"
The application was supported by ecological material but that did not include an up to date winter survey of the birds using the water body. The "Phase 1 Habitat and Ecological Scoping Survey" relied upon visits made in May to August 2011. Presence of Gadwall and Shoveler ducks on those visits were noted in the documentation as follows:
"4.3 The Lee Valley SPA was classified in June 2000 for its wintering populations of three bird species: Bittern Botaurus stellaris, Gadwall and Shoveler. The small lake on site does provide habitat suitable for the three SPA citation species. During the course of the scoping survey the lake was noted as holding both Gadwall and Shoveler. Although this lake is not part of the SPA it is necessary to consider the importance of this lake in the context of supporting proportions of the SPA populations of both Gadwall and Shoveler and any potential impacts which may arise through the proposed development. The 30 Gadwall recorded during the scoping survey represents 6.6% of the SPA citation population (as based on the 5 year peak mean 1993/4-1997/8 derived from WeBS core count data for the Lee Valley SPA). The 5 Shoveler recorded represents 1.2% of the SPA citation population (as based on the 5 year peak mean 1993/4-1997/8 derived from WeBS core count data for the Lee Valley SPA).
The defendants consulted Natural England on the application under Regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("the 2010 Regulations") which are set out below.
Natural England responded to the consultation on 6 July 2011 as follows:
"However the Ecological Survey carried out by RPS has identified that the small lake in the southern part of the proposal site (referred to as a 'splash' by the applicant) is used by birds including Gadwall and Shoveler which are among the interest features for which the Lee Valley SPA is classified and the Lee Valley Ramsar site is listed.
Their survey on 17 March 2011 recorded the presence of 30 Gadwall: which equates to 6.6% of the population of the Lee Valley SPA and Ramsar site at the time of its designation as an SPA and Ramsar site; or 10% of the minimum number required to qualify a site for selection as an SPA. The proposal site is, therefore, undoubtedly of considerable importance as supporting habitat which is used by the SPA bird interest. (This survey also recorded the presence of 5 Shoveler; although this number is not considered to of particular significance in terms of the population of the SPA and Ramsar site).
Therefore, in the opinion of Natural England, and in the absence of mitigation, the proposal is 'likely to have a significant effect on the European site'. Furthermore, Natural England is also of the opinion that, in the absence of mitigation, the proposal does have the potential to 'adversely affect the integrity of the European site'…
Natural England also notes mitigation measures which have been proposed as part of the application, and considers that these measures should be capable of providing an adequate and extent of supporting habitat, in order to ensure that there would not be a detrimental impact upon those bird species which are designated interest features of the Lee Valley SPA and Ramsar site.
Therefore, provided that these mitigation measures are fully implemented and adequately maintained, Natural England considers that they would be sufficient to prevent the proposal having a significant effect upon the European and international site.
Based on the information provided, Natural England has no objection to the proposed development subject to the inclusion of our recommended conditions and the proposal being carried out in strict accordance with the details of the application. The reason for this view is that subject to the inclusion of our recommended conditions, the proposed development, either alone or in combination with other plans or projects, would not be likely to have a significant effect on the Lee Valley SPA and Ramsar site.
The conditions we recommend are:
• No excavation, infilling or noisy construction works (ie those involving heavy machinery, or particularly noise equipment such as angle-grinders, or hammering) are to take place within the southern half of the proposal site during the period from 1 October to 31 March inclusive in any year.
Reason: To avoid disturbance of the SPA bird interest during the winter period.
• The infilling of the northern part of the existing lake or 'splash' shall not commence...
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