Thorpe Hall Leisure Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 15 January 2020 |
| Neutral Citation | [2020] EWHC 44 (Admin) |
| Date | 15 January 2020 |
| Docket Number | Case No: CO/2847/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2020] EWHC 44 (Admin)
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/2847/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rupert Warren QC (instructed by HOLMES AND HILLS LLP) for the Claimant
Jacqueline Lean (instructed by THE GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Robert Williams (instructed by the SOLICITOR TO TENDRING DISTRICT COUNCIL) for the Interested Party
Hearing dates: 3 and 4 December 2019
Approved Judgment
Thorpe Hall Leisure Ltd, THLL, the Claimant, applied to Tendring District Council, for planning permission to develop some 22 hectares of land around the Lifehouse Hotel in Thorpe-le-Soken for up to 200 dwellings, a 3 hectare park, landscaping and associated infrastructure. Permission was refused. THLL appealed. An Inquiry was held by an Inspector appointed by the Secretary of State; it was largely held in November 2018, but was adjourned until mid-April 2019. During that time events moved on, but were considered at the resumed Inquiry. The Inspector dismissed the appeal in her Decision Letter, DL, dated 11 June 2019.
THLL questions the validity of that decision under s288 Town and Country Planning Act 1990 on the grounds that it was not within the powers of the Secretary of State or that the reasons given were legally inadequate, to its prejudice. More specifically, THLL contends that the Inspector, in concluding that permission could not be granted, erred in law in finding that she could not conclude that there would be no adverse effect on the Hamford Water Special Protection Area, SPA, or on the Hamford Water Special Area of Conservation, SAC, some 2.4k to the north of the appeal site, on Essex's estuarine coast. She reached that conclusion, relying on an erroneous interpretation of Natural England's interim advice about how the risk of harm to a range of Essex Coastal European designated areas should be mitigated by off-site measures. The Secretary of State denies the error. THLL also contends that the Inspector was wrong to conclude that the possible adverse effects could not be overcome at least in part by a condition, which she could and should have imposed.
In ground 2, THLL contends that the Inspector erred in law in reducing the weight she gave to the affordable housing element of the proposal, by taking immaterial factors into account. She had also taken the absence of evidence about the anticipated tenure split into account, without alerting THLL to the criticism she was to make. This omission was unfair. The Secretary of State contends that this is a misreading of the DL; the Inspector was merely disagreeing with THLL's overstatement of its case. Ground 3 contends that the Inspector misinterpreted paragraph 80 of the National Planning Policy Framework, the Framework, and so gave less weight than she ought to have done, to the advantage that the development would have in extending the commercial life of the Lifehouse Hotel, to the advantage of the local economy. The Secretary of State denies the misinterpretation.
Mr Williams for Tendring DC adopted the submissions of Ms Lean for the Secretary of State, but with some variations. He also submitted that if the Inspector had erred in respect of Ground 1, the DL made it clear that she would still have dismissed the appeal, and so any error should not lead to the quashing of the DL in the exercise of my residual discretion under s288. He suggested that this was true of the other Grounds as well.
Ground 1: The Conservation of Habitats and Species Regulations 2017 SI No. 1012 and proof of no adverse effect
The background to this issue lies in the extensive group of estuarine and marsh sites of internationally important nature conservation interest on the 350 miles of Essex coastline; almost all of the Essex coast is protected by an international designation for nature conservation interest. The Hamford Water SAC, SPA and Ramsar site is the nearest to the appeal site. The relevant harm for this case is the risk of increasing recreational use from new housing development, on top of the disturbance which is already occasioned by existing residents. The concept of recreational Zones of Influence, ZoI, within which residential development could generate recreational disturbance has been developed by Natural England, in conjunction with the Essex planning authorities. It is anticipated that there would be some 80,000 new homes in these ZoIs over the period 2018–2038. Natural England, Essex County Council, and the eleven local planning authorities responsible for development planning and control in these ZoIs, are preparing a strategy to deal with this, to be known as the Essex Coast Recreational disturbance Avoidance and Mitigation Strategy, RAMS. They recognised that effective mitigation measures could be taken against the effect of additional recreational disturbance. There were two general types of measure: the provision on the development site of suitable alternative natural green space, SANG, but it was recognised that this would not prevent all increase in recreational disturbance on the designated nature conservation sites. To prevent any adverse effect from such increase in recreational disturbance as would still occur, the strategy would provide for developer contributions, at a set amount per dwelling, to be paid to Councils and pooled for expenditure by them or nature conservation bodies, in or around the designated sites, rather than on the development sites. This pool would be spent on mitigation measures such as on-site wardens.
The draft RAMS was before the Inspector at the time of the resumed Inquiry. It had not been adopted by all of the relevant local planning authorities, including Tendring DC.
I now turn to how the issue developed, noting at the outset the quite narrow basis for the legal error upon which Ground 1 is based. There was no suggestion that the Inspector had misdirected herself in law as to what the Habitat Regulations 2017 required. This is what she said about the sites and the evolution of the RAMS:
“108. The site is located within the recreational zones of influence (ZoI) relating to the Essex Coast RAMS and associated European designations. The closest is Hamford Water SAC/SPA/RAMSAR Site. The other sites within the ZOI are Colne Estuary SPA/RAMSAR, Stour and Orwell estuaries SPA and RAMSAR, Blackwater Estuary SPA/RAMSAR, Dengie SPA/RAMSAR and the Essex Estuaries SAC.
109. The purpose of these designations is to protect internationally important numbers of breeding and non-breeding birds, their coastal habitats and wetland areas….[They] support internationally important species and populations of migratory wildfowl and waders, as well as nationally important bird species. More specifically Hamford Water SPA supports a breeding population of Little Tern. The qualifying feature of Hamford Water SAC is Fisher's Estuarine Moth. The Essex Estuaries SAC is important for its subtidal sandbanks, estuaries, intertidal mud flats and sand flats, Atlantic salt meadows, cord grass swards, glasswort and other annuals colonising mud and sand and Mediterranean saltmarsh scrub.
110. The Essex coastline is a major destination for recreational use, such as walking, dog walking, bird watching, sailing and jet skiing. Surveys have shown that the majority of this activity is by people who live in Essex. In preparing Local Plans recreational disturbance was identified as an issue for all the Coastal Habitats sites.
111. A strategic approach has been developed by 11 Essex Local Planning Authorities with the help of Natural England to deal with recreational disturbance impacts from residential development on coastal European sites (the Essex Coast RAMS). A draft Supplementary Planning Document (SDP), is being prepared that describes the mitigation necessary to protect the wildlife of the Essex coast from increased visitor pressure associated with new residential development and how the mitigation will be funded. ….
112. In August 2018 Natural England provided revised interim advice to ensure any residential planning applications coming forward ahead of the Essex Coast RAMS which have the potential to impact on coastal European designated sites are compliant with the Habitats Regulations. In the interim period before the RAMS is adopted financial contributions should be directed to fund strategic off-site measures in and around the relevant European site(s). The measures should be targeted towards increasing the sites' resilience to recreational pressure. A suitable delivery mechanism must be agreed to ensure the measures are implemented from the first occupation of dwellings. An alternative that may be acceptable is to secure full adherence with the emerging Essex Coast RAMS at the reserved matters stage.”
The first stage for the Inspector to consider was whether significant effects would be likely on the designated sites, before any mitigation measures were considered. She concluded at DL115 that:
“… significant effects on Hamford Water SPA/RAMSAR site would be likely to arise from the appeal proposal alone, as well as in combination with other plans or projects by reason of increased recreational visits to the designated area. There is also a risk that significant effects on Hamford Water SAC and the other designated sites would be likely to arise as a result of the proposal in combination with other plans or projects. This conclusion is consistent with the direction in Natural England's interim advice.”
Accordingly, the Inspector as the competent authority for the purposes of the Habitats Regulations, reg 63, had to make an...
To continue reading
Request your trial
-
The King (LW Zenith Ltd) v Secretary of State for Levelling UP, Housing and Communities
...for the Environment [1991] JPL 961 at 965). On the other hand, as Sir Duncan Ouseley put it in Thorpe Hall Leisure Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 44 (Admin), paragraph 69: “I do not consider that it was for the Inspector to devise a condi......