R (on the application of Barbara Laing) v The Cornwall Council

Hearing dates: 10 January 2024

Approved Judgment

This judgment was handed down remotely at 10.30 am Friday 26 January 2024 and sent to the parties and to the National Archives

HHJJarmanKC:

Introduction

Outline planning permission was granted to the interested party (the developer, which phrase includes its predecessor) by the defendant as local planning authority (the authority) for the construction of nine dwellings on a site (the site) adjoining Bassett Road, Illogan. Condition 6 of the permission required the submission and approval of a landscape and ecological management plan before the development commenced. The developer submitted such a plan (the ecological plan) which the authority, acting by a planning officer under delegated powers, has approved and discharged the condition, as set out in a decision letter dated 2 June 2023. The claimant who lives next door to the site challenges that decision with the permission of HHJ Keyser KC sitting as a judge of the High Court.

There is one ground of challenge subdivided into three sub-grounds, namely that the authority in making the decision misinterpreted condition 6, failed to take into account material considerations and failed to give adequate reasons for the discharge of condition 6. Each of the sub-grounds is disputed by the authority. The developer did not take part in the hearing.

Background

The application for planning permission was submitted by the developer accompanied by an indicative site plan and a preliminary ecological appraisal report (the ecological appraisal). The nine dwellings were shown in a row fronting Bassett Road, which is separated from the site by a Cornish hedge, which typically includes earth and stone as well as shrub. The ecological appraisal showed a loss of 5m of the hedge for access between the site and Bassett Road.

The ecological appraisal made five recommendations in respect of ecology on the site, one of which related to the loss of the hedge. That recommendation was dealt with at [4.2] as follows:

“Hedgerow (loss): Under the current proposals development of the site will result in a c. 5m net loss of hedgerow habitat (UK BAP priority habitat) to create an access. A c. 10m new native hedgerow will be planted elsewhere on-site to mitigate this loss (not currently shown on the proposals)… Each new section of Cornish hedgerow will be planted with native trees and shrubs and should be bordered by a minimum 3m development free buffer seeded with a native wildflower/ grass seed mix. New sections of hedgerow must be positioned to maximize connectivity across the site by connecting directly to retained hedgerows; and must be of the same construction type and width as the hedgerow lost.”

Section 4.3 concerned specific measures in respect of badgers, hedgehogs, bats, reptiles and invasive plants. Section 4.4 under the title “Opportunity for Biodiversity Enhancements” set out recommendations for bat boxes, bird boxes and bee bricks.

In the summary of the ecological appraisal, this was stated:

“Hedgerow (loss and degradation): Development of the site will result in a c. 5m net loss of hedgerow habitat (UK BAP priority habitat) to create an access. To mitigate this loss, new native hedgerow habitat must be constructed elsewhere on-site, measuring double the length of hedgerow to be lost in accordance with Cornwall Council's pending Biodiversity Supplementary Planning Document (SPD).”

The latter document (the supplementary document) was emerging at the time of the appraisal and was later adopted. The importance of creating a greater length of hedge than that lost was explained in it as follows:

“If you are losing features of ecological interest then you need to compensate for them. Compensation is nearly always required at a greater level than the loss incurred because newly created habitats tend to have much smaller biodiversity value than the old features which have been lost. Note that compensation is not always acceptable. Loss of well established features such as mature trees and hedges, or coastal or benthic habitats are very hard to compensate adequately for and your ecologist will be able to advise you on whether this option is likely to be viable”

For example if you are losing a line of hedge you would usually try and provide around double the original length as compensation, or if you lost a bat roost you would nearly always need to provide greater provision of roosting facilities on site.”

The importance of a Cornish hedge in ecological terms was also dealt with thus:

“Bees and other insects feed on pollen providing food for birds and other wildlife — Sanctuary and movement corridor for birds and other wildlife — Refuge for locally distinctive wildflowers and other plants — Wildlife linkage features to other habitats.”

The application for planning permission was refused by the authority but granted on appeal by an inspector in March 2019. Taking all matters into account, he found no conflict with the development plan, and significant social and economic benefits which, within this context, outweigh the moderate conflict with the emerging site allocations document and the Illogan neighbourhood plan.

The inspector attached conditions to the grant of permission, two of which are relevant to the claim, conditions 1 and 6. In doing so, he said this:

“The Council has requested conditions to be applied. Where necessary I have amended the wording of these in the interests of precision and clarity in order to comply with advice in the Planning Practice Guidance…I have added a condition in the interests of biodiversity to secure the mitigation and enhancements pursuant to the Preliminary Ecological Appraisal which was submitted at the appeal.”

Condition 1 reads:

“Details of the appearance, landscaping, layout and scale (hereinafter called the reserved matters) shall be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved.”

Condition 6 provides as follows:

“No development shall commence until a Landscape and Ecological Management Plan (LEMP) setting out the management and maintenance of green infrastructure to be managed for biodiversity and landscape purposes has been submitted to and approved in writing by the Local Planning Authority. For the avoidance of doubt the LEMP shall comply with the recommendations, mitigation and enhancement measures contained within the Preliminary Ecological Appraisal Report.

All elements of the Landscape Scheme shall be implemented and maintained in accordance with the approved details unless otherwise agreed in writing by the local planning authority. All work shall be completed in accordance with the timetable agreed.”

The developer then made a reserved matters application for the discharge of condition 1. By the time of that application, the layout of the dwellings had changed. Instead of nine dwellings in a row along the roadside, the site plan submitted with the application showed that three of them were set back from the front six. This allowed a greater visibility splay from the site onto the road, entailing the loss of hedge there of some 23 meters. The authority refused the application, on the basis that the appearance and layout of the scheme proposed would cause material environmental harm to the character and appearance of the area.

There was another appeal to another inspector, which was allowed. The inspector in his decision letter dated December 2022 dealt with ecological issues at [17] in this way:

“Third parties have also raised concern in terms of the impact of the proposed development on the ecology of the area. However, the outline planning permission requires, via condition, that mitigation and enhancement measures pursuant to the Preliminary Ecological Appraisal Report are secured via the submission of a Landscape and Ecological Management Plan (LEMP) prior to the development of the site. I am therefore satisfied that a mechanism is in place for appropriate ecological mitigation despite the removal of a part of the existing roadside hedgerow habitat to form the access.”

The developer then made an application to discharge condition 6. The ecological plan submitted with the application showed the removal of about 23 meters of the hedge between the site and the road, and replacement with two hedges of a total length of 25m. The replacement hedges were not shown as connecting directly into the retained hedges.

A principal planning officer of the authority, who in the event also determined the application under delegated authority, prepared a report on the application. Such a report is not usual on this type of application, but was provided in this case because of the contentious planning history of the site and the claimant's objections. It referred to the ecological plan as setting out recommendations for biodiversity mitigation and enhancements and stated that “these follow on from the recommendations contained in the [ecological appraisal] submitted with the original application.” It was said that measures include but are not exclusive to the creation and management of new and existing Cornish hedges and provision of in-built bat...