Factual and Procedural Background
This appeal arises from the decision of Judge Patterson dismissing an application by the Appellant against the grant of planning permission for a development of 65 residential dwellings on land at a site in Devon ("the development site"). The planning permission was granted by an Inspector on behalf of the Secretary of State following an appeal by the developer ("Company A") against the refusal of planning permission by the local planning authority ("the Council"). The Appellant, Chair of a local residents' association ("GIE"), had objected to the proposed development at the planning inquiry.
The development site is located near a Special Protection Area ("SPA") and a Special Area of Conservation ("SAC"), protected under EU law by the Habitats Directive and incorporated into domestic law via the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"). The main ground of appeal concerns whether the Inspector’s decision complied with Article 6(3) of the Habitats Directive.
The Council refused planning permission for reasons unrelated to the Habitats Directive but carried out a screening assessment and an appropriate assessment concluding no significant adverse impact on the SPA and SAC, a view endorsed by the national nature conservation agency ("Natural England"). At the inquiry, an expert ecologist instructed by Company A gave evidence supporting this conclusion, which the Inspector accepted. The Appellant challenged this assessment before the High Court and now appeals that decision.
Additional grounds of appeal concern alleged misapplication of national planning policy (paragraph 119 of the National Planning Policy Framework), failure to give adequate reasons, and alleged misapplication of Community Infrastructure Levy Regulations in relation to ecological mitigation contributions. The High Court rejected all grounds, and the Appellant appeals those rejections.
Legal Issues Presented
- Whether the Inspector’s decision to grant planning permission complied with the strict precautionary requirements of Article 6(3) of the Habitats Directive, as implemented by domestic legislation.
- Whether the Inspector misapplied national planning policy, specifically paragraph 119 of the National Planning Policy Framework.
- Whether the Inspector properly applied the Community Infrastructure Levy Regulations 2010 in relation to planning obligations securing ecological mitigation.
- Whether the Inspector gave adequate reasons for his decision.
Arguments of the Parties
Appellant's Arguments
- The Inspector failed to apply the strict precautionary approach required by Article 6(3) of the Habitats Directive, as interpreted in leading European case law, particularly the Waddenzee judgment.
- The expert evidence relied upon by the Inspector was unsupported assertion and did not constitute objective information or the best scientific knowledge in the field.
- The proposed mitigation measures, including strategic green spaces ("SANGs") and financial contributions, were uncertain and contingent on future actions and funding, lacking sufficient assurance to exclude significant adverse effects.
- The Inspector misapplied national planning policy, especially paragraph 119 of the National Planning Policy Framework, by incorrectly applying the presumption in favour of sustainable development.
- The Inspector failed to properly apply regulations 122 and 123 of the Community Infrastructure Levy Regulations in relation to the planning obligation securing the ecological mitigation contribution.
- The Inspector failed to give adequate reasons for his decision.
- Additional subsidiary complaints were raised but described as unfocused and "scattergun" by the Secretary of State’s counsel.
Respondent's Arguments
- The Council’s and the Inspector’s assessments complied with the strict precautionary principle under Article 6(3), supported by detailed ecological reports and expert evidence.
- The expert evidence of the ecologist instructed by Company A was carefully reasoned and based on relevant scientific data, including reports commissioned by the Council and Natural England’s endorsement.
- Preventive safeguarding mitigation measures can be taken into account at the screening stage of Article 6(3), consistent with domestic authority and European case law.
- The Community Infrastructure Levy Regulations were properly applied; the ecological mitigation contribution met the necessary tests of necessity, relationship, and proportionality.
- The Inspector gave adequate reasons in accordance with established legal standards.
- The Appellant’s late-raised argument concerning existing consents and their in-combination effects was not properly pleaded or evidenced and should not be entertained.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 |
Limits on detailed examination of unfocused "scattergun" appeals. |
Cited to justify not addressing every subsidiary complaint in detail due to lack of focused submissions. |
| R (Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) |
Legitimacy of considering mitigation measures at the screening stage under Article 6(3). |
Followed to support the Inspector’s approach to taking account of mitigation measures in screening assessment. |
| Landelijke Vereniging tot Behoud van de Waddenzee v Staatsecretaris van Landbouw, Natuurbeheer en Visserij (Waddenzee) [2005] 2 CMLR 31 |
Strict precautionary approach under Article 6(3) of the Habitats Directive; interpretation of "likely significant effect". |
Applied extensively to define the stringent test and precautionary principle governing the Inspector’s assessment. |
| Sweetman v An Bord Pleanala [2014] PTSR 1092 |
Reinforcement of the low threshold for triggering appropriate assessment under Article 6(3). |
Confirmed the strict precautionary approach and the need for certainty that no adverse effect remains. |
| Commission v Ireland (Case C-418/04) [2007] ECR I-10947 |
Requirement for preventative protection under the Habitats Directive, not merely remedial action post-harm. |
Supported the principle that harm must be prevented in advance, influencing the court’s view on the Inspector’s obligations. |
| Commission of the European Communities v Portuguese Republic (Case C-239/04) [2006] ECR I-10183 |
Consideration of protective measures forming part of a project under Article 6(3). |
Supported the approach that preventive safeguarding measures may be taken into account at the Article 6(3) stage. |
| Briels v Minister van Infrastructuur en Milieu [2014] PTSR 1120 |
Distinction between mitigation and compensation measures under Articles 6(3) and 6(4). |
Applied to clarify that compensatory measures cannot be considered at the Article 6(3) stage. |
| R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA Civ 114 |
Standard of review for environmental assessments is Wednesbury reasonableness. |
Applied to reject the Appellant’s submission for a more intensive standard of review under Article 6(3). |
| R (Akester) v DEFRA [2010] Env LR 33 |
Weight to be given to expert national agencies in ecological assessments. |
Supported the court’s acceptance of Natural England’s expert role and the Inspector’s reliance on it. |
| R (Morge) v Hampshire County Council [2011] UKSC 2 |
Deference to expert ecological evidence and national agencies in planning decisions affecting protected sites. |
Reinforced the legitimacy of the Inspector’s approach in relying on expert evidence. |
| R (Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin) |
Importance of expert evidence and national agency views in habitat protection cases. |
Supported the court’s approach to expert evidence and agency endorsement in this case. |
| South Buckinghamshire District Council v Porter (No. 2) [2004] UKHL 33 |
Standards for adequacy of reasons in planning decisions. |
Applied to conclude that the Inspector’s reasons met legal standards. |
Court's Reasoning and Analysis
The court conducted a detailed legal analysis focused primarily on the application of Article 6(3) of the Habitats Directive and its strict precautionary approach as interpreted by the Court of Justice of the European Union (CJEU) in leading cases such as Waddenzee and Sweetman. The court emphasized that any plan or project likely to have a significant effect on a protected site must be subject to an appropriate assessment unless it can be excluded on the basis of objective information that no such effect will occur.
The court accepted that preventive safeguarding mitigation measures, which eliminate or reduce harmful effects, may be taken into account at both the screening stage and the appropriate assessment stage under Article 6(3), consistent with domestic authority (Hart) and EU case law (Briels). In contrast, compensatory measures that offset harm after it occurs are relevant only under Article 6(4).
The court rejected the Appellant’s submission that the Inspector erred in law by applying the Wednesbury standard of review rather than a more intensive standard, finding that the Wednesbury standard is appropriate in this context, as supported by domestic and EU authority.
The court found that the expert evidence of the ecologist instructed by Company A was carefully reasoned, supported by scientific data and reports, and constituted objective information and the best scientific knowledge in the field. The Inspector was entitled to rely on this evidence, as well as the endorsement by Natural England.
Regarding the application of the strict precautionary approach, the court concluded that the Inspector was entitled to find, on the information before him, that the proposed development, including the proposed mitigation measures and the Joint Interim Approach (JIA) for strategic mitigation, would not be likely to give rise to significant effects on the SPA or SAC, either alone or in combination with other developments. The Inspector’s decision to treat the development as passing the screening stage without requiring a further appropriate assessment was lawful.
The court acknowledged uncertainties concerning the timing and funding of strategic mitigation measures but found these were adequately addressed by the JIA arrangements and the requirement for future assessments as further developments come forward. This approach was consistent with the precautionary principle and allowed for ongoing review before any significant in-combination effects could arise.
The court dismissed subsidiary criticisms of the Inspector’s factual findings, including the treatment of the nature reserve within the SPA, the rejection of a 400m exclusion zone, and the Inspector’s reference to the housing shortage, finding no misdirection or legal error.
The court also dismissed the Appellant’s late-raised argument concerning in-combination effects with existing consents as procedurally unfair and unsupported by evidence.
On the other grounds, the court found that the Inspector properly applied national planning policy, correctly applied the Community Infrastructure Levy Regulations in requiring the ecological mitigation contribution, and gave adequate reasons for his decision in accordance with established legal standards.
Holding and Implications
The court’s final decision was to DISMISS the Appellant’s appeal in its entirety.
The direct effect of this decision is that the planning permission granted by the Inspector for the residential development at the site stands. The decision confirms that, in cases involving protected sites under the Habitats Directive, competent authorities may lawfully take into account preventive mitigation measures at the screening stage of Article 6(3), and that the strict precautionary approach requires certainty that no significant adverse effects will occur, but allows for evaluative judgments supported by objective scientific evidence and expert opinion.
No new precedent was set beyond reaffirming the application of existing EU and domestic case law to the facts of this case, and no reference to the Court of Justice of the European Union was considered necessary.