R Elizabeth Wingfield v Canterbury City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWHC 1975 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/63/2019 |
| Date | 24 July 2019 |
[2019] EWHC 1975 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/63/2019
Richard Buxton (instructed by Richard Buxton Solicitors) for the Claimant
Isabella Tafur (instructed by Legal Services) for the Defendant
Jenny Wigley (instructed by Howes Percival Solicitors) for the Interested Party
Hearing dates: 12 & 13 June 2019
Approved Judgment
In a claim for judicial review filed on 3 January 2019, the Claimant challenged the grant of outline planning permission by the Defendant (hereinafter “the Council”), on 22 November 2018, for a proposed development on the site of the former Chislet Colliery, Hersden, Westbere, Kent (“the Chislet Site”).
The Claimant is a local resident, and the Defendant is the local planning authority. The Claimant has brought this claim despite not having objected to the application for planning permission. The Interested Party (“IP”) is the owner of the Chislet Site and the applicant for outline planning permission.
The grant of outline planning permission, which was subject to conditions, was for a mixed use development of up to 370 dwellings, local centre, open space, community ecological park, hard and soft landscaping and associated infrastructure with access from a new roundabout, on a brownfield site some 19.24 ha in size. Part of the Chislet Site is a Local Wildlife Site.
The Claimant relied, in particular, upon the adverse environmental effects of the proposed development. The southern boundary of the Chislet Site is about 30 metres from the Stodmarsh National Nature Reserve (“Stodmarsh”), separated by the Canterbury to Ramsgate railway line. Stodmarsh is a European designated site and includes the Stodmarsh Special Protection Area (“SPA”), the Stodmarsh Special Area of Conservation (“SAC”), the Stodmarsh Site of Special Scientific Interest (“SSSI”) and the Stodmarsh Ramsar wetland site. The Chislet Site also falls within the 7.2 km zone of influence for the Thanet Coast and Sandwich Bay SPA and Ramsar wetland site.
The Claimant also relied upon a separate judicial review claim, which she filed on 26 March 2019, concerning a proposed development at Hoplands Farm, Island Road, Hersden, Westbere, Kent (the “Hoplands Site”). The Hoplands Site comprises grassland and woodland, and is about 29 ha in size. It is adjacent to the Chislet Site.
The Council granted outline planning permission on 5 July 2017, for a development at the Hoplands Site for up to 250 houses, a neighbourhood centre including medical services, retail outlets and a nursery, a commercial estate, a community building, amenity space and parking, together with 15 ha of ecological parkland.
In the Hoplands claim, the Claimant challenged the Council's decision, dated 12 February 2019, to grant approval for reserved matters relating to access, appearance, landscaping, layout and scale in respect of part of the Hoplands Site, namely, the erection of 176 dwellings (Phases 1A and 1B) and for parkland (Phase 3).
Grounds for judicial review
In her Statement of Facts and Grounds, the Claimant pleaded three grounds of challenge:
i) Ground 1. The Council erred in failing to treat the development at the Chislet Site and the adjacent development at the Hoplands Site as a single project for the purposes of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations 2011”), read with Directive 2011/92/EU (“the EIA Directive”). The Council also erred in failing to consider whether or not the two developments should be treated as a single project.
ii) Ground 2. The Habitats Regulations Assessment (“ HRA”) undertaken by the Council pursuant to regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations 2017”) was unlawful because:
a) It was apparent from the draft that it contained errors and omissions and was not a rigorous scientific appraisal;
b) Its approach and conclusions were contrary to the reservations expressed by Natural England in respect of the HRA for the proposed development at the Hoplands Site, and no reasons were given for departing from Natural England's advice.
iii) Ground 3. The Council failed to give adequate reasons for its decision to grant outline planning permission and/or the reasons given were irrational.
On 13 March 2019, Thornton J. granted permission to apply for judicial review on Ground 1, but refused permission on Grounds 2 and 3.
The Claimant applied to renew her application for permission on Grounds 2 and 3, and the application was listed to be heard on the same occasion as the substantive hearing on Ground 1. Prior to the hearing, the Claimant decided not to pursue Ground 3.
Ground 1: Single project
Planning history
In June 2013, the previous owner of the Chislet Site (MHP Partnership) and the previous owner of the Hoplands Site (George Wilson Developments) jointly issued a document called a “community brochure” setting out their aim to regenerate the village of Hersden through sustainable mixed-use development on the two Sites. In August 2013, a Highways and Transportation Review was published.
Natural England reviewed the Sites and advised that “subject to the following concerns being resolved this development proposal would avoid impacts upon the interest features of Stodmarsh (SSSI, SPA, SAC, Ramsar)”. The concerns were cat predation, surface water run-off, recreational pressure, lighting and potential impacts of construction.
According to the witness statement of Ms Steele, planning consultant for HNC Developments Ltd, the former owners of the Chislet Site informed her that “the intention was not to have a joint project but simply to identify the possibility of both sites coming forward for development purposes”.
The two Sites were not promoted as a single allocation in the Development Plan process. In 2014 separate representations were made in respect of the two Sites on the publication draft of the Canterbury District Local Plan. The Council's 2014 Strategic Housing Land Availability Assessment considered the two Sites separately. Chislet Colliery was promoted for allocation in the 2017 Local Plan; Hoplands Farm was not.
The 2013 proposal was not pursued by the owners of the Chislet Site, and they subsequently sold the Chislet Site to the IP in September 2015.
The Hoplands Site
The Hoplands Site was sold to Quinn Estates and Invicta Properties.
On 7 October 2015, the Council issued a screening opinion which concluded that the proposed development fell within section 10(b) of schedule 2 to the EIA 2011 Regulations, as an infrastructure project exceeding 150 dwellings and 5 hectares in size. It would be likely to have a significant effect on the environment, because of the characteristics of the site and its location close to designated sites, and cumulation with other development. The Council therefore found that the proposed development was EIA development in respect of which an Environmental Statement was required.
On 14 January 2016, Natural England provided written advice on the scope of the Environmental Statement, including cumulative and in-combination effects with other developments.
On 20 January 2016, the Council provided a detailed scoping opinion, incorporating the consultation responses received. It advised inter alia on the assessment required in respect of the Stodmarsh designated sites, and the financial contribution required in respect of the Thanet Coast Strategic Access Management and Monitoring (SAMM) Plan.
On 17 February 2016, Quinn Estates and Invicta Properties submitted an application for outline planning permission for a development at the Hoplands Site. The application was accompanied by a detailed Environmental Statement. As well as assessing the environmental effects of the proposed development, it also assessed cumulative and in-combination effects with other nearby development, including the Chislet Site.
Outline planning permission was granted on 5 July 2017.
The Hoplands Site was acquired by Redrow Homes, with the benefit of outline planning permission, in October 2017.
The Chislet Site
Turning to the Chislet Site, on 3 June 2015, the IP requested a screening opinion from the Council, to determine whether its proposed development at the Chislet Site was EIA development.
On 10 September 2015, the Council issued a screening opinion which concluded that the proposed development fell within section 10(b) of schedule 2 to the EIA Regulations 2011, being an Infrastructure Project exceeding 150 dwellings and 0.5 hectares in size.
In a thorough report, the Council applied the selection criteria for screening in schedule 3 to the EIA Regulations 2011. Under the heading “Characteristics of the Development”, it identified the proposed development as a mixed use development on the former colliery site, extending to approximately 19.2 ha. It did not find that the proposed development was part of any other wider development, whether at the Hoplands Site, or elsewhere. It did, however, identify other planned developments in the area (land to the north of Hersden allocated for up to 800 dwellings and land allocated for 1,000 dwellings at Sturry/Broad Oak). The Council found that there was “potential for the cumulation with other development in the vicinity with likely significant environmental effects”. It also identified a likely increase in traffic noise and pollution arising from the Chislet Site, and stated “the in-combination effect of development with other planned housing development in the locality will need to be...
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