Hart District Council, R (on the application of) v Secretary of State for Communities & Local Government & Ors

Factual and Procedural Background

This opinion concerns an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of the first defendant to allow four appeals made by the second and third defendants under Section 78 of the Act. The first defendant's decision was contained in a decision letter dated 24th July 2007.

The first defendant appointed an inspector to hold a public inquiry into the four appeals, which took place in December 2006. The inspector recommended dismissal of all four appeals. The appeals related to residential development proposals on land off Dilly Lane, near Hartley Wintney in Hart District. The proposals included outline and detailed planning permission for 170 dwellings with 40% affordable housing, improvements to a footpath (King John's Ride), and the change of use of an adjoining field to informal recreational space.

The Thames Basin Heaths were designated a Special Protection Area (SPA) in March 2005, protected under the Birds Directive and Habitats Directive, with obligations transposed into domestic law by the Conservation (Natural Habitats, &c.) Regulations 1984 ("the Regulations"). The main appeal site lies near components of the SPA, including Hazeley Heath SSSI.

The ecological concern was whether the proposed development, alone or in combination with other developments, would have a significant effect on the SPA, particularly through increased recreational pressure. Natural England (NE) initially objected but later withdrew objections following a package of mitigation measures proposed by the appellants, including Suitable Alternative Natural Greenspace (SANGS) to divert recreational use from the SPA.

The first defendant ultimately allowed the appeals and granted planning permission, relying heavily on NE's advice that the mitigation package was sufficient to avoid significant effects on the SPA without requiring an appropriate assessment under the Habitats Regulations.

Legal Issues Presented

1. Whether the first defendant erred in considering mitigation measures at the screening stage when deciding if the proposed development was likely to have a significant effect on the SPA.
2. Whether the first defendant lawfully concluded that an appropriate assessment under the Habitats Regulations was not required.
3. Whether the first defendant properly weighed the inspector's conclusions and other material considerations, including the Technical Assessor's report on the Draft Delivery Plan.
4. The adequacy of the first defendant's assessment of housing land supply within Hart District in the context of the appeals.
5. Whether an appropriate condition was required to secure works to upgrade King John's Ride.

Arguments of the Parties

Claimant's Arguments

• NE and the first defendant wrongly considered mitigation measures as part of the screening stage instead of requiring an appropriate assessment.
• The first defendant failed to find that an appropriate assessment should be carried out under Regulation 48(1).
• The first defendant failed to have regard to material considerations, including the inspector's report and the Technical Assessor's report, which cast doubt on NE's approach.
• The first defendant gave undue weight to NE's views on mitigation and the need for an appropriate assessment.
• The first defendant's conclusion on housing supply was illogical, particularly the characterization of the five-year supply as "fragile".
• The first defendant failed to impose an appropriate Grampian condition to secure improvements to King John's Ride, relying instead on obligations to use "reasonable endeavours".

Second and Third Defendants' Arguments

• Mitigation measures incorporated into the project can be considered at the screening stage.
• The package of mitigation, including SANGS, was sufficient to avoid any likely significant effect on the SPA.
• NE's withdrawal of objections was justified and the first defendant was entitled to rely on NE's expert advice.
• The proposed obligations and planning conditions for King John's Ride improvements were adequate and the Grampian condition sought by the claimant was unreasonable.

First Defendant's Position

• The first defendant gave great weight to NE's views as the appropriate nature conservation body and was satisfied that the mitigation package avoided likely significant effects on the SPA.
• The first defendant concluded that an appropriate assessment was not necessary.
• The first defendant carefully assessed housing land supply, concluding a fragile but demonstrable five-year supply.
• The first defendant found the proposed obligations sufficient to secure necessary infrastructure improvements without imposing a Grampian condition.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the legal framework under the Birds Directive, Habitats Directive, and the Conservation (Natural Habitats, &c.) Regulations 1984, focusing on the obligations to avoid significant effects on SPAs and the requirement for appropriate assessment when there is a risk of significant effect.

The court rejected the claimant's primary argument that mitigation measures incorporated into the project must be disregarded at the screening stage. It reasoned that the competent authority must assess the project as a whole, including incorporated mitigation measures, when deciding whether an appropriate assessment is necessary. Ignoring such measures would be illogical and contrary to the legislative scheme.

The court analyzed the relevant guidance, including the Methodological Guidance and Circular 06/2005, and found no binding authority requiring mitigation to be disregarded at screening. It distinguished the Waddenzee case, noting that mitigation was not considered there because none was proposed, and that the Advocate General's opinion was not binding and addressed a different factual scenario.

Drawing analogies from environmental impact assessment case law, the court emphasized that decision-makers are entitled and indeed required to consider remedial or mitigation measures when forming screening opinions.

The court considered the nature of the mitigation package, which included SANGS designed to avoid any net increase in recreational pressure on the SPA, and found that NE had rigorously tested and approved the package. The court accepted that if the competent authority is satisfied on objective information that the project, including mitigation, will not have a significant effect, no appropriate assessment is required.

The court addressed the claimant's contention that the first defendant and NE had misapplied the Waddenzee test by focusing on likelihood rather than risk of significant effect. The court found that the statutory language used reflected the Waddenzee test and that the precautionary principle was properly applied.

The court further held that the first defendant was entitled to prefer NE's expert advice over the inspector's doubts, especially as the doubts were not supported by objective evidence.

Regarding the housing supply issue, the court found the first defendant's assessment to be careful, reasonable, and consistent with PPS3, rejecting the claimant's argument that describing the supply as "fragile" was illogical.

On the issue of securing improvements to King John's Ride, the court accepted the first defendant's reasoning that the planning obligations and reasonable endeavours commitments were sufficient and that imposing a Grampian condition requiring works before commencement of development would be unreasonable.

The court also clarified that the decision letter, when read as a whole, constituted a grant of planning permission despite the absence of explicit language to that effect.

Holding and Implications

The court DISMISSED the claimant's application to quash the first defendant's decision.

The holding confirms that competent authorities may consider mitigation measures incorporated into a project at the screening stage under the Habitats Regulations when deciding whether an appropriate assessment is required. It affirms the lawfulness of granting planning permission where the competent authority, relying on expert advice, concludes that mitigation measures avoid likely significant effects on protected sites.

The decision emphasizes the weight to be given to the views of the designated nature conservation body and clarifies the approach to assessing housing land supply and conditions securing infrastructure improvements in planning appeals.

No new precedent was set beyond the application of established legal principles to the facts of this case. The direct effect is to uphold the planning permission granted in respect of the four appeals.