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EIA, Habitats and CIL challenge to Exminster housing scheme fails

DATE: 10 Dec 2013

In Smyth v SSCLG & Others [2013] EWHC 3844 (Admin) Patterson J. dismissed a s. 288 application seeking to challenge the grant (on appeal) of planning permission for the construction of 65 dwellings with associated highways and parking at Sentrys Farm, Exminster, Devon.
The claimant argued that the decision of the Secretary of State’s Inspector was unlawful for a number of reasons including defects in the LPA’s screening opinion, Habitats and Birds Directive issues and breach of the CIL Regulations.
The appeal site lay close to the Exe Estuary SPA and Dawlish Warren SAC. The Inspector in granting permission relied on  a Joint Interim Approach to securing recreational  mitigation (JIA) agreed by Natural England.
All the grounds of challenge were rejected.
On the habitats ground the Judge applied R ( on the application of Hart DC) v Secretary of State for Communities and Local Government [2008] 2P. & C.R.16 saying:

“153.      The Unilateral Obligation set out the Conservation Contribution as a sum of £26,252.36 to be paid prior to the occupation of any of the dwellings to be constructed on site. Subject to discharging its conservation duties what was done with the money was for the LPA, as the money was to be paid as part of a strategic solution as recommended by the JIA. The LPA made a submission on the S106 contributions including that on the conservation contribution. That set out that the LPA had been working with NE on agreeing a strategy for the protected sites by creating two strategic SANGS as proposed in Teignbridge’s Core Strategy with a further one to be proposed in Exeter. The recreational impacts to be addressed were water based and shore based with a costing based on £2,681,337 making a contribution per dwelling of £350 which was to be uplifted in the case of appeal site due to the larger than average house size.
154.        I have set out in full above the relevant part of the Inspector’s decision letter. The following is a summary. The Inspector began by setting out the location of the appeal site relative to the SPA and SAC and recited the history of the LPA’s screening assessment and the Appropriate Assessment. He recorded that he gave considerable weight to the conclusion of NE but notwithstanding that it fell to him as the ‘competent authority’ to determine whether the proposed development complied with the Conservation of Habitats and Species Regulations 2010 (para 25 and 26).
155.        The Inspector then went on to record the Conservation Objectives of the SPA and SAC before looking at the potential impacts of the development. As part of that appraisal he recorded the screening assessment carried out by the LPA, the condition assessment carried out by NE and that the LPA had identified that any impacts from the proposed development would be part of a future in combination effect of about 15,000 houses in Teignbridge and a further 28,000 in Exeter and Devon (paras 27 & 28).
156.        The Inspector noted that, in the absence of a robust mitigation package specific to the Exe Estuary and Dawlish Warren, the LPA had accepted advice from NE that a JIA approach to securing recreational mitigation would be suitable. He recited the fact of the Interim Report from Footprint Ecology noting that the sensitive habitats within the SPA and SAC are some 2.5km to 3km from the appeal site (paras 29 and 30).
157.        The Inspector then recorded the recommendation in the Interim Report that the alternative sites and green infrastructure was not likely to be effective alone but could be effective if combined with on site management measures which was the approach taken by the JIA. He concluded that notwithstanding the habitats were estuarine as opposed to heathlands that the JIA and its outcomes were an acceptable way of securing required mitigation (paras 31 and 32).
158.        In arriving at his conclusion the Inspector was aware that the JIA was an interim measure and tended towards a “one size fits all” approach but considered that it would be inappropriate, in view of the housing shortage in the district, to wait for a final mitigation package before allowing any housing development. Conditions were a perfectly acceptable way of dealing with drainage and landscape features ( paras 33 and 34)
...
163.        It is contended by the claimant that there was a breach of Article 6(3) of the Habitats Directive because there was no appropriate assessment and that the Inspector failed to ask himself the correct legal question in assessing the risk of significant harm. I reject that submission. Mr Goodwin was a professionally qualified ecologist who had given objective scientific evidence to the Inquiry. His firm had also compiled the ecological assessment as part of the planning application. If the Inspector preferred that evidence, which he did, that gave him a sound and objective basis to conclude that there was no risk of a significant effect.
164.        Further, Mr Goodwin’s conclusions were supported by the conclusions in the AA carried out by Ms Rush for the LPA and by NE. The claimant contends that weight should not attach to the views of NE as they changed their stance from that as an objector to the development in a detailed letter dated 17 March 2011 to one of support for the development proposals in a short email of 29 June 2011. Further, NE gave no reasons for changing their stance.
165.        The starting point is that whilst the Inspector was the “competent authority” the weight that he gave to each party’s views was a matter for his judgement. The giving of considerable weight to the views of NE was something that he was entitled to do given their status as the appropriate “nature conservation body” in relation to the 2010 regulations. Further, given the role of NE the Inspector was bound to give their advice considerable weight and there had to be cogent and compelling reasons for departing from it: R( on the application of Akester) v DEFRA [2010] Env L.R. 33 at paragraph 112.”


James Maurici QC appeared for the Secretary of State.

Rhodri Price-Lewis QC appeared for the Interested Parties.