R (Morge) v Hampshire County Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder QC |
| Judgment Date | 19 January 2011 |
| Neutral Citation | [2009] EWHC 2940 (Admin) |
| Docket Number | Case No: CO/10056/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 January 2011 |
[2009] EWHC 2940 (Admin)
His Honour Judge Bidder Q.C. Sitting as a Deputy High Court Judge
Case No: CO/10056/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
(Judgment handed down at
Cardiff Crown Court)
Charles George QC with Sarah Sackman (instructed by Swain & Co.) for the Claimant
Neil Cameron QC with Sasha White (instructed by Legal Services, Hampshire County Council) for the Defendant
Hearing dates: 14 th and 15 th October 2009
In this claim the claimant seeks to apply for judicial review of a decision by the Defendant to grant planning permission for the "proposed South East Hampshire Bus Rapid Transit Phase 1 Fareham to Gosport from Redlands Lane Fareham south via disused railway corridor to Military Road, Gosport" ("the planning permission"). At the outset of this rolled up hearing I granted permission to apply.
In brief summary, the grounds of the challenge are that the Council acted unlawfully in that:
a) It breached the requirements under EC Habitats Directive (92/43/EEC) and the Habitats Regulations which transpose the Habitats Directive into English law in relation to protection of bats which are strictly protected under European law being a European Protected Species;
b) it erred in law and/or acted irrationally in deciding not to treat the proposal as an "EIA development" under the EIA Regulations 1999 on the basis that the schedule 2 development was unlikely to have significant environmental effects.;
c) It failed to take account of the extent of harm caused by the proposed development to the large population of badgers which are a protected species (a National Protected Species) under the Protection of Badgers Act 1992.
Sub paragraphs a and b above are equivalent to grounds 1 and 2 in the application, which grounds are subdivided. Ground three was not pursued and sub paragraph c is the equivalent of ground 4.
The background to the challenge
South East Hampshire Bus Rapid Transit Phase 1 Fareham to Gosport from Redlands Lane Fareham ( "the BRT scheme") is intended to create a new bus rapid transport in Gosport and Fareham, South Hampshire along 4.7 kilometres of a disused railway line. The intention is that a busway will be created that runs along the path of the old railway line with non-guided buses able to join the existing roads at various points along the route. The railway line was last used in 1969. Since then it has become overgrown and substantial vegetation has grown up on and along the line.
The scheme will create a new, efficient, modern and highly sustainable form of public transport to the benefit of many residents, workers and visitors to the region.
The Defendant is the local planning authority for the administrative area in which the proposal is situated. The Defendant is also the applicant for planning permission through its agent Transport for South Hampshire ("TfSH ") who submitted a planning application on 31 st March 2009.
TfSH is the local transport bidding and delivery agency for the South Hampshire sub region working in conjunction with the three highway authorities in the region (Portsmouth CC, Southampton CC and Hampshire CC) and is responsible for delivering transport requirements to implement the regional spatial strategy as contained in the South East Plan.
The highway network that currently exists in South East Hampshire is constrained by two critical factors, namely, the geographical layout of the area which results in severe access restrictions and the access into the peninsula, which is largely single carriageway and, at present, is extremely congested. By 2011 it is expected that 66% of the route will be over capacity. In order to improve access to the area the Defendant has sought to provide an alternative form of transport to the private car.
The Defendant believes that this scheme will greatly improve the transport options for the communities and population of Gosport and Fareham. Providing an alternative to the private car accords with the aims and policy of central government.
The land proposed for the scheme was used as a railway line for 128 years prior to its closure. The proposed busway uses almost totally the existing footprint, except for where buses are to be connected to the present roads by new or altered junctions. Most of the scheme lies within a built-up area. Some, however, passes close to wooded areas.
The application site is surrounded by designated nature conservation sites, namely the Portsmouth Harbour Site of Special Scientific Interest (SSSI) which forms part of the Portsmouth Harbour Special Protection Area (SPA) the Oakdene Woods Site of Importance for Nature Conservation (SINC) and the Fareham Grassland SINC. The site has also been found to contain a large population of badgers and a number of bat species roost and forage along the corridor.
Previous schemes for providing alternatives to the private car have foundered for lack of central government funding. This scheme, however, has received a commitment of £20 million from central government. The Defendants contend that if planning permission is quashed the scheme will be delayed by many months if not years. The whole question of funding will also be in debate as the funding currently secured requires a project to be completed by 31 March 2011.
The scheme is supported by the Fareham Borough Council and the Gosport Borough Council. It was the subject of extensive consultation and questionnaires returned following initial consultation in October 2008 showed that public reaction was mainly positive. There were, however, 291 objections to the scheme. One of the objectors is the Claimant who lives in a property which is close to the junction of one of the best access roads with the new rapid transport road. She has the benefit of legal aid to bring these proceedings.
The planning history
The majority of points in issue in this application relate to the impact of the scheme on local ecology.
The Defendant was obliged to consider the application of articles 12 and 16 of the EC Habitats Directive, the Habitats Regulations, the Environment Impact Assessment Directive and the Environment Impact Assessment Regulations 1999.
In November 2008 planning consultants Mott Gifford submitted a screening report on behalf of the Defendant. On 9 December 2008 a screening opinion that the development was not EIA development was adopted by the Defendant. On 27 March 2009 the Defendant received notification of Community Infrastructure Fund funding allocation for Phase 1 A of the busway. On 31 March 2009 an application for planning permission, which was for both Phase 1A and B, was submitted together with a Planning Statement, a Detailed Environmental Assessment (DEA) (which is, of course, not the same as an EIA) and an Appropriate Assessment Screening Matrix ("AASM").
An AASM was conducted because the works proposed under the scheme were some 30 m at their closest point from Portsmouth Harbour which is designated a Specially Protected Area ("SPA"). Before works are carried out that might affect this highest European designation of area, a developer (and a planning authority—in this case identical) have very carefully to look at the potential impact on the SPA. The AASM looks at whether, for example, the Birds Directive and the Habitats Directive are engaged. If they are, a detailed Appropriate Assessment ("AA") is required.
On 20 April 2009 a second screening opinion that the development was not EIA development was adopted by the Defendant.
On 30 April 2009 Natural England (the Government's advisor on nature conservation) objected to the planning application due to their concerns about the impact of the development on bats and great crested newts. On 29 June 2009 Natural England reiterated their objection. As a result, the Defendant commissioned an Updated Bat Survey ("UBS") which was submitted on 9 July 2009. On 13 July 2009 the regulatory committee of the defendant visited the site.
On the 17 July 2009, as a direct result of receipt of the UBS, Natural England withdrew their objection.
At some stage probably prior to 23 July 2009 the Defendant's planning officers prepared a Decision Report ("DR" DB2/530). On 23 July 2009 Natural England sent a further letter which almost certainly triggered an Addendum Decision Report ("ADR" DB2/561). On 29 July 2009 the Regulatory Committee met to determine whether or not to grant permission for the scheme. The question of permission was the only item in their morning meeting and discussion lasted between 10.30 a.m. and 1.30 p.m. (minutes of the meeting are at DB2/563–564). Their decision ( CB1/3.1–3.17) was issued on 31 July 2009. Permission was granted.
The parties to this application complied with the pre-action protocol and an application for judicial review (my copy is undated) together with an application for urgent consideration and interim relief was issued. On 9 September 2009 Mr Justice Silber granted interim relief and made an order preventing the Defendant from proceeding with any works in connection with a planning permission. The parties agreed to a variation of that order and detailed directions for this rolled up hearing.
Ground 1 – the legal framework
Article 12(1) of the Habitats Directive provides:
"Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, prohibiting:
(a) all...
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Table of Cases
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