R (Lewis) v Redcar & Cleveland Borough Council (No 1)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE JACKSON
Judgment Date20 Dec 2007
Neutral Citation[2007] EWHC 3166 (Admin)
Docket NumberCase Number: CO/7223/2007

[2007] EWHC 3166 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at

Birmingham Crown Court

Queen Elizabeth II Law Courts

1 Newton Street

Birmingham B4 7NA

Before:

Mr Justice Jackson

Case Number: CO/7223/2007

Between:
The Queen On The Application of Kevin Paul Lewis
Claimant
and
Redcar and Cleveland Borough Council
Defendant
and
Persimmon Homes Teesside Limited
Interested Party

MR GORDON NARDELL appeared on behalf of the Claimant

MS FRANCES PATTERSON QC AND MR JOHN HUNTER appeared on behalf of the Defendant

MR JAMES MAURICI appeared on behalf of the Interested Party

MR JUSTICE JACKSON
1

This judgment is in seven parts, namely: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the law relating to bias and pre-determination; part 5, the claimant's first ground; part 6, the claimant's second ground; part 7, conclusion.

Part 1

Introduction

MR JUSTICE JACKSON
2

This is a claim for judicial review of a decision to grant outline planning permission for a development on the coast of Cleveland. The claimant is Kevin Paul Lewis, a resident of Redcar. The defendant is Redcar and Cleveland Borough Council (“the council”). The interested party in these proceedings is Persimmon Homes Teesside Limited (“Persimmon”).

3

The coast at Redcar runs in an east-west direction, just to the north of the town. The land, the subject of the disputed planning permission, lies in the northern part of Redcar, just to the south of the beach (“the site”). The site includes an open area known as Coatham Common and a boating lake. The council is the owner of the site. For many years, there has been a proposal to construct on the site a mix of residential development and leisure facilities (“the Coatham development project” or “the project”).

4

The site adjoins an area used by many species of birds. I shall therefore set out the enactments relevant to conservation which impact upon the proposed development.

5

Council Directive 79/409/EC of 2nd April 1979, on the Conservation of Wild Birds, is generally referred to as “the Birds Directive”. Article 4 of the Birds Directive provides for member states to classify areas used by rare or sensitive species of birds as special protection areas (“SPAs”). Council Directive 92/43/EC of 21st May 1992, on the Conservation of Natural Habitats and of Wild Fauna and Flora, is generally referred to as “the Habitats Directive”. Article 6 of the Habitats Directive provides:

“1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

“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 disturbances 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 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.”

6

Areas which have been designated SPAs under Article 4 of the Birds Directive constitute special areas of conservation for the purposes of Article 6 of the Habitats Directive.

7

The Conservation (Natural Habitats, &c) Regulations 1994, SI No2716 of 1994, will be referred to as “the 1994 Regulations”. Regulation 48 of the 1994 Regulations transposes the requirements of Article 6 of the Habitats Directive into UK domestic law. 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.

“3. The competent authority shall 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 may specify.

“4. They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate.

“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.”

8

An area which has been designated a SPA under Article 4 of the Birds Directive constitutes a “European site” for the purposes of Regulation 48. Because many rare birds visit the coast of Teesmouth and Cleveland, this area has been classified as a SPA. The full title of this SPA is Teesmouth and Cleveland Coast Special Protection Area (“the SPA”).

9

The southern boundary of the SPA lies approximately 50 metres north of the promenade at Coatham. The boundary of the SPA follows the mean high watermark along Coatham Sands, as far as the northernmost point of Coatham Seafront, where it then sweeps northeast to include the southern edge of Coatham Rocks. The SPA also includes Redcar Rocks and the beach immediately adjacent as far as mean high water and the sand dunes from approximately 0.5 of a kilometre west of Coatham, west along the South Gare Peninsular.

10

The SPA includes a range of coastal habitats such as sand and mud flats, rocky shore, salt marsh, freshwater marsh and sand dunes extending over 1,250 hectares. These habitats are all centred on and around an estuary that has been considerably modified by human activities. When combined, these habitats provide feeding and roosting opportunities for important numbers of water birds, both in winter and during passage periods. The site qualifies under Article 4.1 of the Birds Directive by supporting populations of European importance of little tern and sandwich tern. During the breeding season, approximately 37 pairs of little tern are present. During passage periods, approximately 2,190 sandwich tern can be present at the SPA.

11

The SPA also qualifies under Article 4.2 of the Birds Directive by supporting populations of European importance of the migratory species ringed plover, knot and redshank. During passage periods approximately 634 ringed plover occur at the SPA, representing at least 1.3 per cent of the Europe/North Africa wintering population. During the winter approximately 4,190 knot and 1,648 redshank occur at the SPA. These counts represent at least 1.2 per cent of the wintering Northeastern Canada, Greenland, Iceland, Northwestern Europe population and 1.1 per cent of the wintering Eastern Atlantic population.

12

In addition to the above, the SPA also qualifies as a wetland of international importance under Article 4.2 of the Birds Directive by regularly supporting about 20,000 waterfowl. Over winter, the area regularly supports approximately 21,406 individual waterfowl, including sanderling, lapwing, shelduck, cormorant, redshank and knot.

13

Natural England (“NE”), formerly known as English Nature, is a nature conservation body for the purposes of Regulation 48.3 of the 1994 Regulations. The Royal Society for the Protection of Birds (“RSPB”) is also a nature conservation body for the purposes of that regulation. Nathaniel Lichfield & Partners (“NLP”) are a firm of planning consultants who have been acting for Persimmon. E3 Ecology Limited (“E3”) are a specialist ecological consultancy who have been acting for Persimmon on the instructions of NLP.

15

Article 20 of the GDPO, in conjunction with Regulation 32 of the 1999 Regulations, envisages that where a planning application is accompanied by an environmental assessment, it will generally be dealt with within 16 weeks. However, provision is also...

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