The High Court has recently clarified the law on Habitats Regulations appropriate assessments where outline planning permission and reserved matters decisions overlap under Habitats Directive and recent ECJ case law

On 24thJuly 2019, the High Court (Administrative Court) delivered judgment in R (Wingfield) v Canterbury City Council [2019] EWHC 1974, another case involving a challenge to a development that already had outline planning permission and approval of reserved matters. The developer succeeded in repelling the challenge, but the case demonstrates again what a minefield this area of the law is for developers and planning authorities.

The legislative background to the case is Part 6 of the Habitats Regulations 2017which implements the EU Habitats Directive(92/43/EEC). This requires a Habitats Regulations Assessment (HRA) of plans and projects that are likely to have a significant effect on a ‘European site’ and imposes restrictions on such plans and projects that are likely to have a significant effect.

European sites include Special Areas of Conservation (SACs) and Special Protection Areas (SPAs). The HRA involves a four-stage process – screening; an appropriate assessment; consideration of alternative solutions; and whether there are imperative reasons of overriding public interest. In April 2018, the European Court of Justice (ECJ) judgment in People Over Wind v Coillte Teoranta (C-323/17) clarified that mitigation measures were not to be taken into account at the screening stage of an HRA. This lead to amendment in this respect of the National Planning Policy Framework (NPPF) for England, related planning procedures and NPPF guidance

In the Wingfield v Canterburycase, a local resident (Wingfield) applied for judicial review of a decision of the local planning authority (LPA), Canterbury City Council, to grant approval for reserved matters relating to a mixed-use development by Redrow Homes. The site is near a European designated site and included a SAC, a SPA, a site of special scientific interest (SSSI) and a Ramsar protected wetland site.

In 2015, the LPA had issued a screening opinion to the original site developer stating that an Environmental Statement was required and that, without mitigation to exclude likely significant effects on the environment, an HRA would also be required. The original site developer applied for outline planning permission which included a “Report to inform a Habitats Regulations Assessment”. Two years later, in 2017, the LPA granted outline permission, subject to detailed conditions. The site was subsequently acquired by Redrow.

In 2019, as a result of the ECJ ruling in the People over Wind case, the LPA carried out an HRA, which concluded that the site developer had addressed the proposed mitigation measures, and so granted approval of the reserved matters.

Wingfield sought judicial review on the basis that the LPA had breached EU law by failing to undertake an HRA before granting outline planning permission and by taking into account mitigation measures when screening the proposed development, contrary to People Over Wind. The High Court dismissed the application. However, the decision came down to timing, in relation to EU law as it stood at the time of granting outline planning permission. The reasoning of the High Court was as follows:

  1. An HRA is to be conducted at the outline planning permission stage where the assessment criteria in regulation 63(1) of the Habitats Regulations are met (regulation 70(3), Habitats Regulations 2017).
  2. However, the ECJ ruling inPeople Over Wind did not have the effect of rendering the grant of outline planning permission a nullity, since a decision made by a public body is valid until quashed (Smith v East Elloe Rural DC [1956] A.C. 736)
  3. Making an analogy with case law in the context of the Environmental Impact Assessment (EIA) Directive 2011 (2011/92), the Court observed that, where national law provides for a consent procedure comprising more than one stage (in this case outline permission followed by approval of reserved matters), the effects of the project on the environment should be identified and assessed at the time of the procedure relating to the principal decision (Commission v UK, C-508/03).
  4. However, where the need for an EIA was overlooked at the outline stage, an assessment must be carried out at the reserved matters stage (R (Barker) v Bromley LBC [2006] UKHL 52).
  5. Applying that principle, the need for an HRA was “overlooked” at the outline permission stage, since the established case law at the relevant time was to the effect that mitigation measures could be considered at the screening stage (R (Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204). That understanding was not corrected untilPeople Over Wind. Therefore, the LPA could lawfully conduct an HRA at the reserved matters stage.
  6. Unlike the EIA Directive 2011, the Habitats Directive had no stated objective that an appropriate assessment was expected “at the earliest possible stage”. The EIA regime sought to ensure consideration of relevant information at the first decision-making stage, whereas the HRA regime was focused on ensuring the avoidance of harm to the integrity of protected sites.
  7. The consequences of revoking planning decisions long after they had been made, and the time limits for challenge had expired, were disruptive and undermined the principle of legal certainty (R v Secretary of State for Trade and Industry Ex parte Greenpeace Ltd [1998] Eu. L.R. 4800; and People Over Wind, paragraphs 59-61, 63, 67-72, 75).
  8. Redrow had acquired the site after outline planning permission had been granted and the time for bringing a challenge had expired. Therefore, the LPA’s decision to remedy its earlier error by conducting an HRA at the reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law.