Establishing the Bounds of Appropriate Assessment and Judicial Discretion: Insights from Canterbury and Crondall Cases

Introduction

The High Court of England and Wales delivered a significant judgment on May 14, 2019, addressing two intertwined cases: Canterbury City Council v. Secretary of State for Housing, Communities and Local Government and Crondall Parish Council v. Secretary of State for Housing, Communities and Local Government. Both cases revolved around procedural and substantive challenges concerning planning permissions, particularly focusing on the failure to undertake an Appropriate Assessment as mandated by the Habitats Regulations 2017.

Summary of the Judgment

Justice Dove presided over both cases, recognizing a common error of law: the Secretary of State failed to carry out an Appropriate Assessment of the proposed developments' effects on European Sites of Special Protection (SPA/Ramsar). This omission was against Regulation 63 of the Habitats Regulations 2017, which transposes Article 6 of Directive 92/43/EEC into domestic law.

In the Canterbury case, despite the acknowledged error, the court concluded that the decision to grant planning permission would have remained unchanged even if an Appropriate Assessment had been conducted. Conversely, in the Crondall case, due to insufficient mitigative measures and unresolved funding mechanisms for necessary infrastructure (Kent BRIS), the court quashed the decision to grant planning permission.

Analysis

Precedents Cited

The judgment heavily referenced European Union case law, particularly from the Court of Justice of the European Union (CJEU), including the Waddenzee case and the influential People Over Wind decision. Domestically, it cited key cases like Simplex GE Holdings v. Secretary of State for the Environment, Walton v. Scottish Ministers, and Gladman Development Limited v. Daventry District Council, which collectively shape the landscape of judicial review concerning planning permissions and environmental assessments.

Legal Reasoning

The core legal issue revolved around the requirement of an Appropriate Assessment under Article 6(3) of the Habitats Directive. Justice Dove elaborated that initiating an Appropriate Assessment is mandatory when there is a likelihood of significant adverse effects on protected sites, irrespective of any proposed mitigation measures.

In the Canterbury case, the court assessed that comprehensive documentation and mitigation strategies (Sustainable Alternative Natural Greenspace - SANG, and Strategic Access Management and Monitoring - SAMM) sufficiently addressed potential impacts on the Thanet Coast and Sandwich Bay SPA/Ramsar. Therefore, the Secretary of State's failure to formally conduct an Appropriate Assessment did not alter the outcome.

Conversely, in the Crondall case, despite similar mitigation attempts, objections highlighted the inadequacy of these measures in practice. The court found that without enforceable funding mechanisms for infrastructure improvements (Kent BRIS), the Secretary of State's decision lacked the necessary robustness, compelling the court to intervene and quash the planning permission.

Impact

This judgment reinforces the stringent obligations under European environmental law within domestic planning procedures. It delineates the boundaries of judicial discretion in cases of procedural errors, emphasizing that courts will not intervene unless there is clear evidence that the decision would have been different had the procedural requirements been properly followed.

For practitioners, this underscores the critical importance of meticulous compliance with environmental assessment regulations. Moreover, it sets a precedent that not all procedural oversights will necessarily invalidate a decision, particularly when substantive justice remains uncompromised.

Complex Concepts Simplified

Appropriate Assessment: A mandatory evaluation process under the Habitats Regulations to determine the potential significant effects of a proposed development on designated European sites.

Sustainable Alternative Natural Greenspace (SANG): Compensatory measures intended to mitigate the environmental impact of new developments by providing alternative recreational green spaces.

Strategic Access Management and Monitoring (SAMM): Initiatives aimed at regulating access to sensitive habitats to minimize disturbance from increased recreational usage resulting from new developments.

Habitats Directive (92/43/EEC): An EU directive aiming to promote the maintenance of biodiversity by requiring member states to take measures to maintain or restore natural habitats and wild flora and fauna.

Conclusion

The High Court's decision in the Canterbury and Crondall cases provides a nuanced understanding of how procedural errors, specifically the failure to conduct an Appropriate Assessment, are treated within the judicial framework. While the court exercised restraint in not overturning the agreement in Canterbury due to compelling mitigative evidence, it took decisive action in Crondall where such assurances were insufficient.

Ultimately, the judgment reinforces the sanctity of environmental assessment procedures, ensuring that protective measures around ecologically sensitive areas are not merely formalities but substantive safeguards. For future cases, it serves as a reminder that thorough compliance with both procedural and substantive environmental obligations is paramount in the planning permission process.

Key Takeaways

Failure to conduct an Appropriate Assessment can constitute a significant error of law, meriting judicial intervention.
Court discretion to quash decisions rests on the certainty that the outcome would have been identical absent the procedural error.
Comprehensive mitigative measures and robust planning obligations can sometimes offset procedural shortcomings.
Meeting both procedural compliance and substantive environmental protections is essential in the planning process.
European environmental directives continue to exert substantial influence over domestic planning decisions.