The claimant conservation trust (B) applied for judicial review of the decision of the first defendant local planning authority to grant planning permission for a development by the interested party (R). The site in question, a former power station, was a habitat containing three species of insect who required conservation action and whose continued survival was challenged by the proposed development. Planning Policy Statement 9 provided, by para 1(vi), that planning decisions should prevent harm to biodiversity and geological conservation interests where granting planning permission would result in significant harm to those interests, and that if such harm could not be prevented, adequately mitigated against, or compensated for, then planning permission should be refused. R’s application for permission to develop the site had been accompanied by an environmental assessment which included an assessment of the impact upon ecology of the proposed development. Initial objections to the development by a statutory consultee were withdrawn on terms which included a reduction in the built area on the site and steps to phase in the development, and an undertaking by R to leave an ecology area which was to be left as grassland. The local authority, having stated that it had considered and assessed the content of the environmental assessment submitted with the application and consultation responses, granted planning permission subject to compliance with the proposed conditions. B contended that the local authority had not applied the guidance given in para 1(vi) of PPS9 in that it had failed to go through the required step-by-step process. B submitted that the decision was therefore procedurally flawed and had to be quashed and submitted for further consideration. B further contended that the local authority had not dealt adequately with the environmental impact assessment.
Application refused. (1) Whilst it was plainly right that the local authority had not expressly followed a step-by-step process in dealing with para 1(iv) of PPS9, the fact that something was not expressly set out in a document did not mean that it had been overlooked. Merely because a step-by-step approach, as on one reading might be thought to be required by para 1(vi), had not been followed it did not automatically follow that the decision should be quashed. It was necessary to look behind the words and see what in substance had been decided which, in the instant case, was that by taking the appropriate mitigation and phasing measures approved by the statutory consultee and specified in the planning permission, the harm which would otherwise be caused to the site would not be long-term and, when taken together with the impact of the development on adjoining land, would be no more than temporary. It was fair to describe such harm as not significant. Accordingly, it was not necessary for the decision-maker to go through the steps suggested in para 1(vi) and look first for alternative sites, then go on to consider mitigation, then compensation, and then decide whether or not to refuse permission if significant harm remained. There had, therefore, been no procedural error in the local authority’s decision. (2) It was clear that a very careful and thorough environmental impact assessment had been made and conclusions reached which addressed the impact upon biodiversity and ecological factors, and the local authority had fulfilled its obligation imposed upon it to consider that assessment.
William Hicks QC and Reuben Taylor acted for the interested party.
The case is due to be heard in the Court of Appeal in November 2008.