R (David Sahota) v Herefordshire Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Arnold,Lord Justice Lewis |
| Judgment Date | 13 December 2022 |
| Neutral Citation | [2022] EWCA Civ 1640 |
| Docket Number | Case No: CA-2021-001940 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
and
[2022] EWCA Civ 1640
Lord Justice Singh
Lord Justice Arnold
and
Lord Justice Lewis
Case No: CA-2021-001940
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
HHJ Worster (sitting as a judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Alex Goodman (instructed by Leigh Day LLP) for the Appellant
Matthew Henderson (instructed by Herefordshire Council) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 15 November 2022
Approved Judgment
This judgment was handed down remotely at 10 a.m. on 13 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal arises from the Respondent's grant of planning permission, on 4 June 2020, to the Interested Party (Mr John Morgan), to which the Appellant (Mr David Sahota) objects. The Appellant brought a claim for judicial review to challenge the grant of planning permission but that claim was dismissed by HHJ Worster (sitting as a judge of the High Court) (“the judge”), in a judgment given on 25 August 2021.
The issues on this appeal are: (1) whether the judge erred in admitting the evidence of Mr James Bisset, the ecology officer at the Respondent authority; and (2) whether the Respondent's planning committee was misled into believing that there was no need for a Habitats Regulations Assessment (“ HRA”).
At the hearing we heard from Mr Alex Goodman for the Appellant and Mr Matthew Henderson for the Respondent. I express the Court's gratitude to them both for their written and oral submissions.
Factual Background
On 30 July 2019 the Interested Party applied to the Respondent for planning permission for the proposed development, which was for the erection of a cattle shed and an extension to an existing agricultural building. The site of the proposed development is located within the upper Golden Valley in western Herefordshire in the rural parish of Dorstone. The River Wye is a Special Area of Conservation (“SAC”) and is also a Site of Special Scientific Interest (“SSSI”).
The Appellant is concerned that, as the proposed development contemplates the expansion of livestock farming, this would increase manure production and the spreading of manure on the surrounding fields, which would run off into nearby watercourses, in particular the River Wye.
The Respondent's planning committee considered the application and resolved to grant planning permission following a meeting on 3 June 2020. The committee's resolution was in accordance with the recommendation of the Respondent's officers, as contained in their report to the committee.
On 20 August 2019, Mr Bisset had been consulted by the Respondent's case officer about the application for planning permission. Mr Bisset is a qualified ecology officer with over 35 years' professional experience. He provided written advice to the planning officer, which stated:
“The additional cattle shed has a floor area of 465.5msq. This falls under any trigger sizes (500msq) for air pollution emissions in regards to any Sites of Special Scientific Interest as identified through [N]atural England's details SSSI Impact Risk Zone data set. Based on this information no detailed air emissions assessment is required for this specific development at this location. No likely significant effects on any relevant SSSI have been identified. There are no further ecology comments on this … development within an existing developed farm complex.”
That advice was inserted verbatim into the officers' report to the planning committee, at para. 4.2. I will set out other relevant parts of the report below.
In the course of these proceedings in the High Court, the Respondent filed a witness statement from Mr Bisset, dated 23 October 2020. Objection was (and is) taken to the admission of that statement. I will refer to Mr Bisset's evidence in more detail below.
In his judgment the judge rejected the objection to the admission of the evidence of Mr Bisset. He then dismissed the claim for judicial review on its merits.
The planning officers' report
As I have mentioned, para. 4.2 of the officers' report set out verbatim the advice which had been received from the ecology officer.
At paras. 6.24–6.26, under the heading ‘Ecology and Biodiversity’, the report said:
“6.24 Policy E1 of the DNDP [Dorstone Neighbourhood Development Plan] sets out that development proposals should not have any adverse impacts on the River Wye Special Area of Conservation (SAC), echoing the requirements set out in more detail at Policy SD3 and SD4 of the CS [Core Strategy].
6.25 The applicant has advised that given the building would be for the housing of cattle, all manure will be solid with no slurry given that the cattle would be on straw, as is standard practice.
6.26 The Council's Ecologist has commented that the additional cattle shed would have a floor area of 464.5msq. This falls under any trigger sizes (500msq) for air pollution emissions in regards to any Sites of Special Scientific Interest as identified though natural England's details SSSI Impact Risk Zone data set. Based on this information, there is no detailed air emissions assessment required for this development at this location. Noting that the site is outside the River Wye Special SAC, there are no other triggers for a Habitat Regulations Assessment ( HRA) process and there are therefore no likely significant effects on any other relevant SSSI.”
The report concluded, at para. 6.30, as follows:
“The application would result in the modest expansion to a small scale rural enterprise, fulfilling economic objectives of sustainable development. The proposed buildings, by virtue of their design, scale and siting would positively respond to the existing and established complex of buildings and are not considered to cause harm to the wider landscape setting. Moreover, no harm to ecological networks or the local highway network is identified. Overall, the proposal is considered to accord with the provisions of the Dorstone Neighbourhood Development Plan, the Herefordshire Local Plan – Core Strategy and the National Planning Policy Framework. The proposal is therefore considered a sustainable form of development and is accordingly recommended for approval subject to the conditions as set out below.”
It appears from the transcript of the meeting of the planning committee on 3 June 2020 that members of the committee asked questions of the planning officers about ecology matters. The answers in substance repeated what had been said in writing, that the advice from the ecology officer was that there was no cumulative impact assessment of what the site could produce because the ecologist had taken the view that there is no objection to the proposal.
Material legislation
Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) (“the Habitats Regulations”) transposed article 6(3) of Council Directive 92/43/EEC (the Habitats Directive) into domestic law. The Habitats Regulations remain part of domestic law although the United Kingdom has now left the European Union.
Regulation 63 provides that:
“(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 or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives. […]
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies […]” (Emphasis added)
Grounds of Appeal
Although the initial grounds of appeal were not drafted in this way, the Appellant has adopted what was said by Stuart-Smith LJ in granting permission to appeal on 19 January 2022 and has formulated the issues which arise on this appeal in the following way:
(1) The judge's decisions (a) to admit the evidence of Mr Bisset and then (b) to dismiss the claim relied critically on erroneous and/or irrational interpretations of the evidence (including the evidence of Mr Bisset itself) and of the argument advanced to the judge and further, his decision is unjust (see 52.21(3)(b)) in admitting Mr Bisset's evidence and in the reliance he placed on it (“Issue 1”).
(2) The judge erred in law in deciding that, prior to granting planning permission, the Respondent had complied with regulation 63 of the Habitats Regulations (“Issue 2”).
Issue 1: the admissibility of Mr Bisset's evidence
The authorities on the admissibility of “ ex post facto” evidence in judicial review proceedings were summarised by this Court (comprising Bean LJ, Sir Keith Lindblom SPT and Sir Stephen Irwin) in R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197, [2022] RTR 2, at para. 125. The authorities, many of which were cited to us also, include R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302; R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152, [2018] PTSR 43; and Kenyon v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302, [2021] Env LR 8. It is unnecessary to recite all of the seven...
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