People over Wind: Use of discretion, the appropriate assessment regime and risk taking in s.106 obligations
Planning and Environment, Public Law and Judicial Review
People over Wind
On 14 May 2019, Mr Justice Dove gave judgment in two linked test cases on the applicability of discretion to breaches of the EU ‘appropriate assessment’ regime.
He dismissed a challenge to the Secretary of State’s grant of planning permission for a new mixed-use neighbourhood with up to 800 dwellings near Herne Bay in Canterbury. He did so notwithstanding that permission had been granted in the absence of an appropriate assessment under the Habitats Regulations.
In the linked case, he quashed the permission because, in the circumstances of that case, he was not satisfied he could exercise his discretion.
During the application process, an appropriate assessment had been considered unnecessary as mitigation measures would ensure no significant adverse effects on the nearby Thanet Coast and Sandwich Bay SPA/Ramsar site.
Planning permission was refused by the local planning authority but ultimately granted on appeal by the Secretary of State. Before the appeal decision was issued the Court of Justice of the European Union ruled (in People Over Wind v Coillte Teoranta C-323/17) that mitigation measures should not be taken into account in deciding whether an appropriate assessment was needed.
In a challenge to the grant of permission, the local planning authority argued that an appropriate assessment had been unlawfully screened out, and the failure to comply with the Habitats Regulations meant that the decision should be quashed.
Before Mr Justice Dove, all parties accepted that in light of the CJEU’s decision the failure to carry out an appropriate assessment was unlawful. However, substantial environmental information had been provided as part of the application process and there was no evidence to suggest that had an appropriate assessment been carried out it might have led to a different decision.
The thorough review of all EU and UK authority in point is well worth reading. In these circumstances the Court was satisfied that, had the error not been made, the decision to grant planning would inevitably have been the same.
The authority also argued that the decision was irrational because the Secretary of State had found that a bypass was needed to make the development acceptable, but had not required a planning obligation ensuring that full funding for the bypass would be forthcoming from the applicant on the basis that it would be disproportionate for it to pay the entire cost when there was a prospect of a further contribution being made in due course by another allocated site.
The Court considered that he had adopted a lawful, risk-based approach. Although the applicant would not fully fund the bypass, there was the prospect that developers of other sites to be served by the bypass would be required to contribute to its cost. The Secretary of State had weighed the lack of certainty of funding against the benefits of the proposals in a lawful exercise of planning judgment.
You can read the judgment here.
Mark Lowe QC and Robin Green acted for Hollamby Estates and were instructed by Vic Hester at the inquiry and by Heidi Copland of DMH Stallard in the High Court.