R Elizabeth Wingfield v Canterbury City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWHC 1974 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1231/2019 |
| Date | 24 July 2019 |
[2019] EWHC 1974 (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/1231/2019
Richard Buxton (instructed by Richard Buxton Solicitors) for the Claimant
Isabella Tafur (instructed by Legal Services) for the Defendant
Andrew Tabachnik QC (instructed by Redrow Homes Ltd) for the Interested Party
Hearing dates: 11 & 12 June 2019
Approved Judgment
In a claim for judicial review filed on 26 March 2019, the Claimant challenged the decision of the Defendant (hereinafter “the Council”), on 12 February 2019, to grant approval for reserved matters relating to a development at Hoplands Farm, Island Road, Hersden, Westbere, Kent (“the Site”) for which outline planning permission was granted on 5 July 2017.
The Claimant is a local resident, and the Defendant is the local planning authority. The Interested Party (“IP”) is the developer of the Site.
On 5 July 2017, the Council granted outline planning permission for a development of 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.
On 12 February 2019, the Council granted 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).
The southern boundary of the Site is near to 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 Site also falls within the 7.2 km zone of influence for the Thanet Coast and Sandwich Bay SPA and Ramsar wetland site (“Thanet Coast”).
The Claimant applied for judicial review on three grounds:
i) The Council failed to undertake a lawful Habitats Regulation Assessment ( HRA), pursuant to regulation 63 of the Conservation of Habitats and Species Regulations 2017 1 (“the Habitats Regulations 2017”), prior to the reserved matters decision; and
ii) The Council has not remedied its failure to carry out a lawful HRA prior to the outline planning permission decision. Although the Claimant did not directly challenge the grant of outline planning permission, as the judicial review time limit had long expired, she asked the Court to intervene to remedy the alleged breach of EU law, by way of declaration or mandatory order.
iii) The HRA was deficient in relation to recreational pressure, invasive species, loss of functionally linked habitat, and lighting, and in respect of in-combination assessment with other proposed developments.
On 2 May 2019, I ordered that the application for judicial review should be heard as a rolled-up hearing.
The Site is adjacent to the former Chislet Colliery. The Claimant has also challenged proposed development at the Chislet Site. This claim was heard by me immediately before the hearing in the Chislet Site case, but the two claims were not linked, as the grounds were different.
Planning history
The Site is located to the south of the A28, on the southern edge of Hersden village, approximately 6.5 km from the centre of Canterbury. It is 28.74 hectares (71 acres) in size, and comprises open countryside and former farm land.
In about June 2015, Quinn Estates Ltd and Invicta Properties Ltd (the previous applicants) applied for a screening opinion for a mixed use development at the Site.
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 Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (“the EIA Regulations 2011”), 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. The screening opinion added “without mitigation, which satisfies the Council that likely significant effects can be excluded, then an Appropriate Assessment under the Habitat Regulations will be 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. Natural England advised that an Appropriate Assessment could be required under the Habitats Regulations 2010, and recommended that the Environmental Statement should have a separate section addressing impacts upon European and Ramsar sites entitled ‘Information for Habitats Regulations Assessment’. It also advised, in accordance with Government Circular 06/2005 that a survey (equivalent to Phase 2), impact assessment and mitigation proposals for Habitats and Species of Principal Importance should be included in the Environmental Statement.
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, the previous applicants submitted an application for outline planning permission. 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.
Chapter 12 of the Environmental Statement assessed the potential effects on water quality and hydrology, including flood risk. Contamination and control of surface water during the construction and operational phases were assessed, and a drainage strategy proposed.
Chapter 11 of the Environmental Statement assessed the likely levels of significant effects in terms of Ecology and Nature Conservation, at inter alia Stodmarsh and Thanet Coast. Appendices contained an Ecological Baseline Assessment, in accordance with Natural England's advice, and an Ecological and Landscape Management Plan. There was a detailed analysis of the impact of the construction and operational phases. Table 11.9 summarised the residual adverse effects, after mitigation, as mainly negligible and non-significant.
As part of the Environmental Statement, the previous applicants provided a lengthy ‘Report to inform a Habitats Regulations Assessment’ dated February 2016. The Report stated, at paragraph 1.1.2, that, because of the Site's proximity to the designated sites, an HRA assessment would be required, and it set out the assessment methodology, in accordance with the Office of the Deputy Prime Minister circular 06/2005. Stage 2 should examine if the proposals will result in any ‘likely significant effects’ on the internationally important features of the European sites, either alone or in combination with other plans or projects. Where it is considered that they will not, then no further assessment was necessary and permission should not be refused under the assessment. If any likely significant effects were identified, or where it remained unclear whether effects would be significant, the assessment procedure should follow on to Stage 3. Under Stage 3, a full appropriate assessment of the likely effects of the plan or project had to be undertaken by the competent authority.
The Report was informed by previous survey and assessment work relating to the Site and the Chislet Site, and Kent Wildlife Trust was consulted in respect of the Local Wildlife Site at the Chislet Site.
The Report analysed the effects of the development on Stodmarsh in respect of direct habitat loss, noise, light and visual impact, cat predation, recreation, air quality and water levels. In-combination effects with other sites, including strategic allocations for housing to the north of Hersden and Chislet, were assessed.
The Report concluded, at paragraph 4.5.1, that it was considered unlikely that Stodmarsh would be subject to adverse effects arising from direct habitat loss, water levels, noise or visual impact, cat predation or recreation. Some minor potential for effects was identified as a result of water quality and light disturbance, to be addressed by mitigation.
In its consultation response, Natural England considered the Environmental Statement. It did not object to the proposal, subject to conditions. It advised that appropriate financial contributions to the Thanet Coast SAMM Plan should be in place before the dwellings were occupied. A Sustainable Urban Drainage Strategy (“SuDS Strategy”) to attenuate surface water run-off and filter pollutants (including oil interceptors) should be implemented to protect the quality of the designated sites, and specific details of this strategy should be provided at the detailed application stage. Kent Wildlife Trust did not object to the proposal either.
Both Natural England and the Kent Wildlife Trust were fully supportive of the 15 ha green space, which would offer an important habitat buffer to the adjacent designated sites. It made...
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