R (Hart District Council v ((1) The Secretary of State for Communities and Local Government (2) Luckmore Ltd (3) Barratt Homes Ltd) v ((1) Tayor Wimpey Developments Ltd (2) Natural England Interested Parties

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE SULLIVAN
Judgment Date01 May 2008
Neutral Citation[2008] EWHC 1204 (Admin)
Docket NumberCO/7623/2007
Date01 May 2008

[2008] EWHC 1204 (Admin)

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Sullivan

CO/7623/2007

Between
The Queen on the Application of Hart District Council
Claimant
and
(1) The Secretary of State for Communities and Local Government
(2) Luckmore Limited
(3) Barratt Homes Limited
Defendants
and
(1) Tayor Wimpey Developments Limited
(2) Natural England
Interested Parties

Mr S Hockman QC and Miss A Williams (instructed by Sharpe Pritchard) appeared on behalf of the Claimant

Mr J Maurici and Mr R Turner (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant

Miss M Cook and Mr A Ranatunga (instructed by Boyes Turner) appeared on behalf of the Second and Third Defendants

Mr K indholm QC and Mr C Howell-Williams (instructed by Addlesham Goddard) appeared on behalf of the First Interested Party

Mr R Drabble QC and Mr G Machin (instructed by Browne Jacobson) appeared on behalf of the Second Interested Party

(Approved by the court)

MR JUSTICE SULLIVAN

Introduction

2

This is an application under Section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash the decision of the first defendant to allow four appeals made by the second and third defendants under Section 78 of the Act. The first defendant's decision is contained in a decision letter dated 24th July 2007 (“the decision letter”).

3

The first defendant appointed an inspector to hold a public inquiry into the four appeals. The Inspector held an inquiry between 12th and 15th December 2006 and on 19th December 2006, and reported to the first defendant on 23rd January 2007. In her report, the Inspector recommended that all four appeals should be dismissed.

4

The Inspector said that the appeal proposals were “in effect a package of proposals to achieve the residential development of land off Dilly Lane.” (Paragraph 1). Dilly Lane is on the southern edge of Hartley Wintney, which is one of the larger villages in Hart District. The four appeals were referred to as Appeal A, Appeal G, Appeal E and Appeal F in both the Inspector's Report and the decision letter.

5

As amended, Appeal A related to an application for outline planning permission for 170 dwellings, with an affordable housing content of 40 per cent on the “main appeal site” to the south of Dilly Lane.

6

Appeal G related to a detailed application for planning permission for 170 dwellings, including 68 affordable dwellings on the main appeal site.

7

Appeal E related to proposals to widen and surface footpath 18A King John's Ride, to upgrade it to a 2.5 metre wide footpath and cycle path, and to create two links from the upgraded path into the northern and southern parts of the main appeal site. King John's Ride runs to the west of the main appeal site, between it and existing housing in Wier Road, and then runs in a southwesterly direction and joins the B3016 Road, which leads to Winchfield Station, some 1.6 kilometres to the south.

8

Appeal F related to an application to change the use of the field (“the field site”) to the east of and adjoining the main appeal site from agricultural use to informal recreational space to serve the proposed residential development and for use by the local community. In total, 9.52 hectares of new open space was included in the package of proposals, 3.36 hectares as buffer zone in the main appeal site, and 6.16 hectares in the field site. Other mitigation measures that form a part of the package are listed in paragraph 4.9 of the Inspector's Report.

9

On 9th March 2005, the Thames Basin Heaths were classified as a special protection area (SPA) under Article 4 of EC Directive 79/407/EEC on the conservation of wild birds (“the Birds Directive”) for three species listed in Annex 1 to the Directive: the nightjar, the woodlark and the Dartford warbler, because the SPA is regularly used by 1 per cent or more of Great Britain's population of those bird species.

10

Since the adoption of the Habitats Directive 92/43/EEC (“the Habitats Directive”), and as a result of Article 7 of that Directive, SPAs classified under the Birds Directive are protected by the obligations contained in Articles 6(2) and (3) of the Habitats Directive. Articles 6(2) and (3) of that Directive impose the following obligations:

“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 this 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 subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

11

These provisions are transposed into domestic law by Regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1984 (“the Regulations”). So far as relevant, Regulation 48 provides:

“(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 in Great Britain… either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of the site,

shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives.

(2) A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.

(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site…

(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given.”

12

The main appeal site lies about 1.5 kilometres south of the nearest point of Hazeley Heath, which is on the north side of Hartley Wintney. Hazeley Heath is a heathland site of Special Scientific Interest (SSSI), and a component of the Thames Basin Heaths SPA. Bramshill SSSI, Castle Bottom to Yateley and Hawley Commons SSSI are also components of the SPA, within 5 kilometres of the appeals site (paragraph 2.3 of the Inspector's Report).

Factual background: The effect on the SPA

13

The planning history of the four appeals is lengthy and complicated. For present purposes, it may be summarised as follows. Having considered the potential for increased visitor pressure on the healthlands within the SPA as a result of permitting residential development some distance away from the SPA, English Nature, now Natural England (NE), indicated in January 2004 that competent authorities should undertake appropriate assessments for proposed residential developments up to 5 kilometres from the (then proposed) SPA.

14

The outline application, which was the subject of Appeal A, was made on 29th July 2004. In a letter dated 12th August 2004, NE stated that the Dilly Lane site was too far from the SPA for there to be an effect on the Annex 1 bird species, and that the proposals were not likely to cause significant damage to Hazeley Heath SSSI. NE, therefore, did not object to the outline application, which subsequently became Appeal A.

15

Mr Colebourn, the ecological consultant instructed by the second and third defendants, explained in his proof of evidence at the inquiry how NE had altered its stance when the detailed application (Appeal G) was made on 1st March 2006:

“2.12 Towards the end of 2005, Natural England reconsidered its policy and 'decided to take a stronger line' in relation to the 'in-combination' effect of multiple residential schemes on the ecological function of the… SPA. In particular, NE's letter to HDC [Hart District Council] dated 25 October 2005 drew attention to further research on heathlands, especially the work of Liley, Clarke, and others, in Dorset; and, in particular, on the mechanisms by which recreational impacts including dog-walking, might affect bird breeding success, and thus be considered a deleterious effect on the habitat.

2.13 Natural England then considered that although it might potentially be possible to mitigate such effects through each site providing appropriate alternative recreational facilities, the present Dilly lane application did not provide such Alternative Greenspace, and therefore, in NE's view must fail the Regulation 48 tests.

2.14 On that basis, Natural England advised HDC that it objected to the Full Planning Application for Dilly Lane.”

16

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