R Devon Wildlife Trust v Teignbridge District Council Rocklands Development Partnership (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Hickinbottom
Judgment Date28 July 2015
Neutral Citation[2015] EWHC 2159 (Admin)
Date28 July 2015
Docket NumberCase No: CO/5375/2014

[2015] EWHC 2159 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT IN BRISTOL

Bristol Civil Justice Centre,

2 Redcliff Street, Bristol, BS1 6GR

Before:

Mr Justice Hickinbottom

Case No: CO/5375/2014

Between:
The Queen on the application of Devon Wildlife Trust
Claimant
and
Teignbridge District Council
Defendant

and

Rocklands Development Partnership
Interested Party

Jenny Wigley (instructed by Richard Buxton Environmental & Public Law) for the Claimant

Michael Bedford (instructed by The Council Solicitor) for the Defendant

The Interested Party was not represented and did not appear

Hearing date: 10 June 2015

Mr Justice Hickinbottom

Introduction

1

This claim concerns the decision of the Defendant planning authority ("the Council") of 10 October 2014 to grant the Interested Party ("the Developer") outline planning permission for up to 230 dwellings and 2,500 sq m employment space at land at Station Hill, Chudleigh, Devon ("the Site").

2

The Site covers an area of approximately 12.3 hectares, lying to the west of Chudleigh, about 900m from the town centre. To the north and west of the Site — between the Site and existing built development — two further sites have been granted permission for residential development, namely Land off Oldway (David Wilson Homes) and Coburg Fields (Bovis Homes). Between the Site and the Land off Oldway site, in a V-shaped area formed by the proposed development, there are two fields which were secured as mitigation land for the Land off Oldway development. They have been set aside in perpetuity as dedicated bat habitat and open space managed specifically for bats. That land has now been transferred to the Claimant for management.

3

The Claimant is an independent charity dedicated to caring for and protecting the natural environment in Devon. It objected to the planning application for the Site because of the adverse impact of the proposed development on the South Hams Special Area of Conservation ("SAC"), an area designated under European Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora ("the Habitats Directive") as an area of recognised nature conservation importance at a European level for the protection of the greater horseshoe bat ("GHB"). SACs are subject to the protection regime of the Habitats Directive, as implemented in the United Kingdom by the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) ("the Habitats Regulations").

4

The GHB is one of Britain's largest and rarest bats, with a total national population of 5,500 individuals of which about one-third are believed to be within the South Hams SAC. The SAC is unusual, in that it comprises five separate but interconnected nationally-designated Sites of Special Scientific Interest which include significant roosts for hibernating in the winter and summer roost sites where the females gather to give birth and rear their young. However, in addition to those specific sites within the notified SAC, GHBs use the wider countryside of South Devon for the majority of their activities including commuting, foraging, roosting and mating. Within that countryside, as well as other roosts, there are vital flyways and sustenance zones recognised as critical in the Natural England document, South Hams SAC — GHB Consultation Zone Planning Guidance (June 2010) ("the 2010 Guidance"). Natural England is an independent executive non-departmental public body, created by section 1 of the Natural Environment and Rural Communities Act 2006, which acts as an adviser to the Government on all aspects of the natural environment in England, with the role of protecting nature and landscape within the various statutory protective schemes including those set up as a response to European obligations.

5

As to flyways, GHBs require linear features in the landscape to navigate, feed and access key foraging grounds. They generally fly close to the ground up to a height of only about 2m, and mostly beneath vegetation cover. GHBs are extremely sensitive to light, and will avoid lit areas: lighting renders areas inhospitable and practically inaccessible to them. The interruption of a flyway by light disturbance has a similar effect to a physical obstruction, and will force GHBs to find an alternative route that will at least add to the bats' energy burden and may ultimately threaten the viability of a colony and/or lead to fragmentation of GHB population and isolation from key foraging areas and roosts.

6

As to foraging areas, most feeding is concentrated within 4km of the roost — less for juveniles. The most important types of habitat for feeding are permanent pasture, hay meadows, woodlands and wetland features such as stream lines. In respect of the South Hams SAC, in the 2010 Guidance Natural England identified important strategic flyways, wide enough at 500m to offer several pathways and to provide alternative routes to accommodate variance in the weather (e.g. GHBs prefer to travel on the lee side of a hedgerow in windy conditions).

7

The Claimant is concerned that the proposed development will interfere with vital GHB flyways and foraging areas.

8

In this claim, the Claimant challenged the grant of planning permission on several grounds. On 23 December 2014, Jay J refused permission to proceed on all of the original grounds. On 12 February 2015, Patterson J allowed the Claimant to amend its grounds; and the Claimant duly amended its claim to rely upon five grounds, as follows.

Ground 1: The Habitats Directive and Habitats Regulations restrict planning permission for development likely significantly to affect an SAC. It is submitted that the Council failed properly to determine whether the proposed development would or would not adversely affect the integrity of the SAC, and thus failed to comply with the Directive and Regulations.

Ground 2: Contrary to regulation 61(3) of the Habitats Regulations, the Council failed to specify or allow a reasonable time for the responses of Natural England to the application for planning permission.

Ground 3: Contrary to regulation 61(4) of the Habitats Regulations, the Council failed to consider the appropriateness or otherwise of consulting the general public on the Habitats Directive Appropriate Assessment, and in particular consulting the Claimant on the GHB mitigation measures proposed.

Ground 4: Contrary to the European Council Directive 2011/92/EU ("the EIA Directive"), as implemented in the United Kingdom by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824) ("the EIA Regulations"), the Council failed to undertake and publish an EIA screening opinion prior to granting planning permission.

Ground 5: Contrary to the Teignbridge Local Plan 2013–33, prior to granting planning permission, the Council failed to require a Strategic GHB Mitigation Plan and/or a Chudleigh settlement-wide bespoke GHB mitigation plan.

9

On 15 April 2014, on the papers, Patterson J granted permission on Ground 4, ordered a rolled-up hearing on Grounds 1 and 5, and refused permission in respect of Grounds 2 and 3. The Claimant has renewed its application in respect of Ground 3, but not Ground 2. Ground 3 was fully argued before me, on a rolled-up basis. I therefore have before me, in effect, the substantive application in respect of Ground 4, and an application to proceed on each of Grounds 1, 3 and 5 on a rolled-up basis.

10

At the hearing, Jenny Wigley appeared for the Claimant, and Michael Bedford for the Council; and I thank them at the outset for their respective contributions.

The Habitats Directive and the Habitats Regulations

11

Article 1 of the Habitats Directive provides, so far as material to this claim:

"(e) 'conservation status of a natural habitat' means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species….

(i) 'conservation status of a species' means the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations….

The 'conservation status' will be taken as 'favourable' when:

—population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and

—the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and

—there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.

(l) 'special area of conservation' means a site of Community importance designated by the Member States through a statutory, administrative and/or contractual act where the necessary conservation measures are applied for the maintenance or restoration, at a favourable conservation status, of the natural habitats and/or the populations of the species for which the site is designated."

12

Article 6 provides, again so far as is material:

"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 the 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...

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