Wyatt v Fareham Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Males |
| Judgment Date | 15 July 2022 |
| Neutral Citation | [2022] EWCA Civ 983 |
| Docket Number | Case No: CA-2021-000658 |
| Court | Court of Appeal (Civil Division) |
and
[2022] EWCA Civ 983
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Singh
and
Lord Justice Males
Case No: CA-2021-000658
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(PLANNING COURT)
THE HONOURABLE MR JUSTICE JAY
[2021] EWHC 1434 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones Q.C. and Conor Fegan (instructed by Fortune Green Legal Practice) for the Appellant
Timothy Mould Q.C. (instructed by Southampton and Fareham Legal Services Partnership) for the Respondent
David Elvin Q.C. and Luke Wilcox (instructed by Browne Jacobson LLP) for Natural England
Hearing dates: 5 and 6 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be not before 4pm on Friday 15 July 2022.
The Senior President of Tribunals:
Introduction
There are two basic questions in this case. First, was the duty to make an “appropriate assessment” under regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”) lawfully performed by a local planning authority when it granted planning permission for housing development on land near a European protected site in the Solent? Second, did the authority comply with its duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 to determine the application in accordance with the development plan unless material considerations indicated otherwise? Neither question involves any novel issue of law. The relevant legal principles are well established and clear.
With permission granted by Lord Justice William Davis, the appellant, Ronald Wyatt, as Chairperson of Brook Avenue Residents Against Development (“BARAD”), appeals against the order of Mr Justice Jay dated 28 May 2021 dismissing his claim for judicial review of the decision of the respondent, Fareham Borough Council on 1 October 2020 to grant outline planning permission for a development of eight detached houses on land at Egmont Nurseries, Brook Avenue, Warsash. The council is the local planning authority, and the “competent authority” under regulation 7 of the Habitats Regulations. It has filed a respondent's notice. The fourth interested party is Natural England, the “appropriate nature conservation body” under regulation 5. It too has filed a respondent's notice. The first, second and third interested parties – Lorraine, Michael and Thomas Hanslip – are the landowners. They filed detailed grounds of resistance opposing the claim but have played no part in the appeal.
The main issues in the appeal
The judge rejected Mr Wyatt's challenge on all eight grounds. Permission to appeal was granted on four of the five grounds in the appellant's notice (grounds 1, 2, 4 and 5). The issue arising from grounds 1, 2 and 4 and the council's respondent's notice is whether the council failed to make a lawful “appropriate assessment” of the proposed development under regulation 63 of the Habitats Regulations, in part because it relied on the technical guidance note published by Natural England, entitled “Advice on Achieving Nutrient Neutrality for New Development in the Solent Region (Version 5 – June 2020)”, which Mr Wyatt contends is legally flawed. The issue arising from ground 5 is whether the council failed lawfully to perform its duty under section 38(6) of the 2004 Act. These two main issues are distinct and can be dealt with separately.
The application for planning permission and the council's decision
The site of the proposed development lies a little to the east of the mouth of the River Hamble and about 5.5km from the Solent and Southampton Water Special Protection Area (“the SPA”), which is a European protected site. Aquatic habitats for many species of plants and birds within the protected site, including the Brent Goose, are vulnerable to the excess deposition of nutrients – in particular nitrogen compounds in wastewater, which cause algal growth. New housing development can thus harm the integrity of the protected site if suitable mitigation measures are not put in place.
The application for outline planning permission was submitted in June 2018. The proposed development was the “[demolition] of existing buildings[, the construction] of eight detached houses [and the creation] of [a] paddock”. The existing use was described as “[redundant] glasshouses and nursery buildings”. The application form indicated that each dwelling would have four or more bedrooms. When the council's Planning Committee considered the proposal in December 2018, it resolved that planning permission should be granted. Before the required section 106 agreement had been entered into and a decision notice issued, Natural England published its technical guidance note. The application came back to the committee on 19 August 2020. By then it had been amended to include mitigation measures, and Natural England had approved the nitrogen budget.
As competent authority, the council was required by regulation 63 of the Habitats Regulations to undertake an “appropriate assessment” to ensure that the development would not adversely affect the integrity of the protected site. In undertaking the “appropriate assessment” it had regard to Natural England's advice about “nutrient neutrality” in its technical guidance note. It used average land use figures in calculating the baseline nitrogen deposition from the site, based its calculation of how much nitrogen the proposed development would produce on a national average occupancy rate for new dwellings of 2.4 persons per dwelling, and applied a 20% “precautionary buffer”.
The legislative provisions for “appropriate assessment”
Article 6(3) of Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Flora and Fauna (“the Habitats Directive”) states:
“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.”
That provision was transposed into domestic law by regulation 63 of the Habitats Regulations, “Assessment of implications for European sites and European offshore marine sites”, which states:
“(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 or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
…
(3) The competent authority must 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 specifies.
…
(5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
(6) In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.”
An exception to the obligation in paragraph (5) arises under regulation 64, where the authority is satisfied that there are “no alternative solutions” and that there are “imperative reasons of overriding public interest” for the project to be carried out.
There is a wealth of case law relevant to article 6(3) and regulation 63, both in the Court of Justice of the European Union (“the CJEU”) and in the domestic courts. Some basic points emerge:
(1) The duty imposed by article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations rests with competent authorities, not with the courts. Whether a plan or project will adversely affect the integrity of a European protected site under regulation 63(5) is always a matter of judgment for the competent authority itself (see the judgment of the CJEU in Holohan v An Bord Pleanála (Case C-461/17) [2019] PTSR 1054, at paragraph 44). That is an evaluative judgment, which the court is neither entitled nor equipped to make for itself (see the judgment of Lord Carnwath in R. (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 W.L.R. 3170, at paragraph 41, and the judgment of Lord Justice Sales, as he then was, in Smyth v Secretary of State for Communities and Local Government ...
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