Factual and Procedural Background
A judicial review claim was filed on 26 March 2019 by the Plaintiff, a local resident, challenging the decision of the Defendant, the local planning authority, to grant approval for reserved matters related to a development at a site known as Hoplands Farm, Hersden, Kent ("the Site"). Outline planning permission had previously been granted on 5 July 2017 for a mixed-use development including up to 250 houses, a neighbourhood centre, commercial estate, community building, and ecological parkland.
The reserved matters approval granted on 12 February 2019 concerned access, appearance, landscaping, layout, and scale for the erection of 176 dwellings (Phases 1A and 1B) and parkland (Phase 3) on part of the Site.
The Site is located near the Stodmarsh National Nature Reserve, a European designated site, and falls within the zone of influence for the Thanet Coast and Sandwich Bay SPA and Ramsar wetland site. The Plaintiff challenged the Defendant’s decision on three grounds related to the lawful conduct of a Habitats Regulation Assessment (HRA) under the Conservation of Habitats and Species Regulations 2017 ("the Habitats Regulations 2017").
The Plaintiff alleged that the Defendant failed to undertake a lawful HRA before the reserved matters decision, did not remedy the failure at the outline planning permission stage, and that the HRA was deficient regarding certain environmental impacts and in-combination effects with other developments.
The Defendant conducted the judicial review hearing as a rolled-up hearing, and this claim was heard separately but contemporaneously with another challenge concerning a nearby site.
The planning history includes a 2015 screening opinion by the Defendant confirming the need for an Environmental Impact Assessment (EIA) due to the scale and location of the development. Natural England provided advice on the scope of the Environmental Statement, including the need for a section addressing impacts on European sites. The outline planning application submitted in February 2016 was accompanied by a detailed Environmental Statement and a Report to inform a Habitats Regulations Assessment. The outline permission was granted on 5 July 2017, subject to conditions and a legal agreement securing contributions to mitigate impacts on designated sites.
Following the grant of outline permission, conditions relating to ecological mitigation, lighting, surface water drainage, construction management, and contamination remediation were discharged with consultation from Natural England and local ecology bodies.
The Interested Party ("IP") submitted an application for approval of reserved matters in December 2017, which was considered and approved on 12 February 2019.
Following the Court of Justice of the European Union (CJEU) judgment in People Over Wind (2018), which clarified that mitigation measures cannot be considered at the screening stage of an HRA, the Defendant carried out a new HRA at the reserved matters stage. This assessment was endorsed by Natural England and concluded that with mitigation, the development would not adversely affect the integrity of the European designated sites.
Legal Issues Presented
- Whether the Defendant lawfully conducted a Habitats Regulation Assessment prior to granting reserved matters approval, having failed to do so lawfully at the outline planning permission stage.
- Whether the Defendant was obliged to revoke the outline planning permission due to the failure to conduct a lawful HRA at that earlier stage.
- Whether the HRA conducted by the Defendant was deficient regarding the assessment of recreational pressure, invasive species, loss of functionally linked habitat, lighting, and in-combination effects with other developments.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant breached EU law by failing to conduct a lawful HRA before granting outline planning permission and improperly took mitigation measures into account at the screening stage, contrary to the CJEU judgment in People Over Wind.
- The grant of outline planning permission was therefore a nullity and should be quashed or revoked.
- The Defendant should have revoked the outline permission when it realized the error rather than conducting the HRA at the reserved matters stage.
- The HRA was deficient in assessing impacts related to recreational pressure, lighting, invasive species, loss of functionally-linked habitat, and in-combination effects with other developments.
Defendant's Arguments
- The Defendant conceded the error in taking mitigation into account at the screening stage but contended that the outline planning permission remained valid unless quashed by a court.
- It was lawful and permissible to conduct the HRA at the reserved matters stage as a remedy for the earlier error.
- The Defendant relied on domestic case law and the principle of legal certainty to argue against revocation of the outline permission.
- The HRA conducted was appropriate, comprehensive, and endorsed by Natural England, meeting the legal requirements.
Interested Party's Arguments
- The Interested Party supported the Defendant’s submissions that the outline consent was valid and that conducting the HRA at the reserved matters stage was lawful.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| People Over Wind v Coillte Teoranta (C-323/17) |
Mitigation measures cannot be considered at the screening stage of an HRA but can be considered at the appropriate assessment stage. |
Guided the Court to reject the Defendant’s initial screening approach and accept the lawfulness of conducting the HRA at reserved matters stage. |
| Landelijke Vereniging tot Behoud van de Waddenzee v Staatsecretaris (C-127/02) |
Definition of "likely significant effects" and the threshold for triggering an HRA. |
Used to frame the standard for when an HRA is required and the nature of the assessment. |
| Sweetman v An Bord Pleanala (C-258/11) |
Two-stage process under Article 6(3) of the Habitats Directive: screening and appropriate assessment. |
Clarified the procedural steps required for HRA and the conditions for authorisation. |
| Holohan v An Board Pleanala (C-461/17) |
Requirements for a lawful appropriate assessment: complete, precise, definitive findings dispelling reasonable scientific doubt. |
Supported the Court’s conclusion that the Defendant’s HRA was sufficient and lawful. |
| R (Champion) v North Norfolk DC [2015] 1 WLR 3710 |
Standard of investigation required for HRA and the role of planning authority judgment. |
Used to support that the Defendant’s assessment was appropriate and based on planning judgment. |
| Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174 |
Standard of review is Wednesbury rationality, not intensive review. |
Guided the Court’s approach to reviewing the Defendant’s planning decisions. |
| R (Wells) v Secretary of State (C-201/02) |
Obligation to nullify unlawful consequences of breaches of Community law, including possible revocation of consents. |
Considered but distinguished; revocation not mandatory and subject to national procedural rules and time limits. |
| Commission v United Kingdom (C-508/03) |
EIA requirements in multi-stage consent procedures and timing of assessments. |
Supported the permissibility of conducting assessments at reserved matters stage if overlooked earlier. |
| R (Barker) v Bromley LBC [2007] 1 AC 470 |
EIA may be required at reserved matters stage when effects were not identifiable at outline stage. |
Applied by analogy to support the Defendant’s approach to HRA timing. |
| Cooper v AG [2011] QB 976 |
Further support for requiring assessments at reserved matters stage if overlooked at outline stage. |
Reinforced the permissibility of the Defendant’s remedial HRA at reserved matters stage. |
| No Adastral New Town Ltd v Suffolk Coastal DC [2015] EWCA Civ 88 |
No requirement for HRA screening at an early stage; focus on avoiding damage to SPA before plan implementation. |
Supported the Court’s interpretation of the timing of appropriate assessments. |
| Smith v East Elloe RDC [1956] AC 736 |
Decisions by public bodies are valid unless quashed by a court. |
Supported rejection of the Plaintiff’s claim that the outline permission was a nullity. |
| Boddington v British Transport Police [1999] 2 AC 143 |
Clarification on validity of administrative decisions pending judicial review. |
Clarified that the outline permission remained valid absent a quashing order. |
| Secretary of State for Communities and Local Government v Wealden District Council [2017] JPL 625 |
Weight to be given to views of the appropriate nature conservation body in HRA. |
Supported the Defendant’s reliance on Natural England’s views. |
| Hart District Council v Secretary of State [2008] EWHC 1204 (Admin) |
Requirement for cogent explanation if decision-maker disregards views of conservation bodies. |
Confirmed the Defendant’s duty to consider Natural England’s advice. |
| Mynnyd y Gwynt Ltd v Secretary of State [2018] 2 CMLR 34 |
Standard for reviewing planning decisions and weight to conservation body views. |
Reinforced the Court’s approach to reviewing the Defendant’s HRA. |
| Canterbury CC & Crondall PC v Secretary of State [2019] EWHC 1211 |
Relief may be refused if substance of EU right complied with despite breach. |
Supported refusal of relief as no substantial difference in outcome would have occurred. |
Court's Reasoning and Analysis
The Court acknowledged that the Defendant erred in taking mitigation measures into account at the screening stage of the outline planning permission, contrary to the CJEU ruling in People Over Wind. However, the Court held that the outline planning permission remained valid unless quashed within the judicial review time limits, which had expired.
The Court considered whether the Defendant was obliged to revoke the outline permission or could lawfully remedy the error by conducting an appropriate assessment at the reserved matters stage. Drawing on case law concerning multi-stage consent procedures under the EIA Directive and analogous principles under the Habitats Directive, the Court found that it was permissible and proportionate for the Defendant to remedy the earlier error in this way.
The Court emphasised the importance of legal certainty and the consequences of revoking planning permissions long after the expiry of challenge periods, noting that the Interested Party had acquired the Site after the expiry of judicial review time limits and significant resources had been invested.
Regarding the alleged deficiencies in the HRA, the Court found that the Defendant’s assessment was appropriate, thorough, and supported by detailed reports and consultation responses, including endorsement by Natural England. The Court held that the Defendant was entitled to rely on information provided by the applicant and the expert views of the appropriate nature conservation body.
The Court rejected the Plaintiff’s challenge to the HRA on grounds of recreational pressure, lighting, invasive species, loss of functionally-linked habitat, and in-combination effects, concluding that the Defendant’s assessment met the required legal standard and was not irrational.
Finally, the Court applied the statutory test under section 31(2A) of the Senior Courts Act 1981 and relevant case law to refuse relief, concluding that the outcome would have been the same even if a lawful assessment had been conducted at the outline stage.
Holding and Implications
DISMISSED
The Court granted permission to apply for judicial review but dismissed the claim on its merits. It held that the Defendant’s decision to conduct the appropriate assessment at the reserved matters stage was lawful and a proportionate remedy for the earlier error. The HRA was found to be adequate and compliant with legal requirements. The outline planning permission remained valid and was not a nullity.
The direct effect of the decision is that the development may proceed subject to the existing permissions and conditions. The Court did not set any new precedent beyond the application of established principles concerning the timing of HRAs in multi-stage planning consents and the scope of judicial review in this context.