Hart District Council v. Secretary Of State For Communities & Local
Government, Luckmore Homes Limited, Barrett Home (Southern Counties) Limited,
Natural England & Another
The Thames Basin Heaths SPA (“the SPA”) was classified, under Article 4 of EC Directive 79/407/ EEC on the Conservation of Wild Birds (“the Birds Directive”), on 9 March 2005 for nightjar, woodlark and Dartford warbler because it is regularly used by 1% or more of the Great Britain population of these species of wild birds. The SPA covers some 8,400ha and is made up of a number of component SSSIs.
The in-combination impact of housing development within 5km of the SPA has been an issue of contention for some time. Natural England’s “Thames Basin Heaths Special Protection Area: Mitigation Standards for Residential Development” known as the “Draft Delivery Plan” which sought to provide strategic guidance on the issues has been the subject of considerable debate in the context of the South East Plan examination-in-public. The issues raised are of considerable importance to local planning authorities across Hampshire, Berkshire and Surrey.
The Second and Third Defendants applied for outline and then detailed planning permission to construct 170 houses in a greenfield site off Dilly Lane, Hartley Wintney, and to undertake associated works in the form of improvements to a footpath and the creation of recreational green spaces known as “suitable alternative natural green spaces” (SANGs). The site in question lies approximately 1.5km from the edge of Hazeley Heath, which forms part of the SPA. It was proposed that the SANGs would avoid any net effect of an increased local population on the SPA by providing alternative recreational space for new residents and existing residents.
The procedural history of the case was complex. There were four relevant planning applications for the development, which had either been refused by the Claimant or not determined within the requisite time. The Second and Third Defendants accordingly appealed to the Secretary of State under s 78 Town and Country Planning Act 1990 against the refusals and deemed refusals. An inquiry was held in December 2006, and in January 2007 the Inspector recommended that the appeals be dismissed. The Secretary of State eventually rejected the Inspector’s recommendation and allowed the appeals in July 2007. That decision was the subject of the present proceedings.
The Grounds of Challenge
The Claimant alleged that the Secretary of State had erred in departing from her Inspector’s conclusions as the effect on the SPA. It was submitted that the question of whether a plan or project was likely to have a “significant effect” on the SPA for the purposes of regulation 48(1) of the Conservation (Natural Habitats etc) Regulations 1994 (SI 271/1994) must be assessed with any mitigation measures (in this case, the “SANGs”) disregarded. It was further claimed that the Secretary of State had erred in departing from the Inspector’s conclusion that there were likely to be significant effects on the SPA.
Sullivan J.’s decision
Sullivan J. held:
1. There is no absolute legal rule that mitigation measures should be disregarded in assessing the question of whether the project was likely to have significant effects on the SPA;
2. If certain features are incorporated into a project, there was no sensible reasons why they should be ignored at the initial assessment stage merely because they are directed at combating the likely effects of the project on the SPA;
3. The competent authority is required to assess the “project”, not part of the project shorn of mitigation measures incorporated into it;
4. There was nothing in the European Court of Justice’s judgment inLandelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Case C-127/02)  Env LR 14 to undermine those conclusions, because the project or plan before the ECJ did not propose any mitigation measures;
5. As a matter of commonsense, anything requiring the proponent of a project to consider mitigation measures at an early stage should be encouraged;
6. The similarity drawn between the Habitats Directive and the EIA Directive by the ECJ in Waddenzee applied in this case. In R(Catt) v Brighton and Hove CC  Env LR 32 the Court of Appeal had held that mitigation measures incorporated into a project should not be disregarded at the screening stage;
7. The underlying principle, as with the EIA directive, is that the Habitats Directive is an aid to effective environmental decision-making, not a legal obstacle course. If having considered the scientific evidence the Secretary of State was satisfied that the mitigation measures would avoid a net increase in visitors to the SPA and therefore avoid any effect it would have been “ludicrous” for her to disaggregate those measures and require an appropriate assessment on the basis that the development without SANGs would be likely to have significant effects, only then to reassemble the project in the appropriate assessment.
8. The Secretary of State was entitled to depart from her Inspector. The Inspector’s “serious doubts” about the proponent’s scientific evidence did not mean that the Secretary of State was obliged to accept those doubts or that she could only exclude them on the basis of further objective evidence.
A transcript of the judgment is not yet available.
James Maurici appeared for the Secretary of State for Communities and Local Government. Richard Drabble QC appeared for Natural England.