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Court of Appeal rejects Exe Estuary SANGS Habitats Directive challenge

The Court of Appeal (Sales LJ gave the leading judgment with which Richards and Kitchen LLJ agreed) today dismissed the appeal in Smyth v SSCLG.

The appeal concerned the grant of planning permission by an Inspector for a development of 65 residential dwellings on land at Sentry’s Farm, Exminster. The development site is located close to the Exe Estuary Special Protection Area for birds (“the SPA”), which is also designated as a Site of Special Scientific Interest. The SPA incorporates the Dawlish Warren Special Area of Conservation (“the SAC”). The entire SPA is an area protected under EU law, in particular Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”). The principal ground of appeal focused on the question whether the decision of the Inspector to grant planning permission complied with the requirements set out in Article 6(3) of the Habitats Directive.

The Court of Appeal undertook an in-depth analysis of the case-law which requires a strict precautionary approach required under the Habitats Directive and considered the application of this in a case where possible in-combination effects with other housing are to be dealt with by a conservation contribution to be used to provide strategic suitable alternative natural green spaces (“SANGs”), with a view to attracting recreational use associated with this substantial combined residential development away from the SPA and the SAC, so as to prevent harm being caused to those sites as a result of that development.

The Court of Appeal also confirmed that the standard of review in Habitats cases was Wednesbury applying R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA CIv 114; [2013] JPL 1027, [32]-[43] and distinguishing R (Evans) v Attorney General [2014] EWCA Civ 254; [2014] QB 855

The Court also considered the interpretation of para. 119 of the NPPF and the application of regs. 122 and 123 of the CIL Regulations.

Click here for the judgment. 

James Maurici QC appeared for the Secretary of State for Communities & Local Government.

Rhodri Price Lewis QC appeared for the Interested Parties.