Wed, 07 Aug 2019
Gladman Developments Limited v Secretary of State for Housing, Communities and Local Government and Medway Council  EWHC 2001 (Admin)
The High Court has recently dismissed a Claimant’s application under section 288 of the 1990 Act in relation to the First Defendant’s Inspector’s decision refusing planning permission following the Court of Justice of the European Union (‘CJEU’)’s Judgment in People Over Wind and Sweetman v Coillte Teoranta [C-323/17], confirming that it is good law.
The Claimant had applied to the Second Defendant Local Authority for outline planning permission for up to 225 residential dwellings which was refused for two reasons; the accessibility of Cliffe Woods for development of the scale that was proposed and the adverse impact of the proposals upon the character and amenity of the local area.
The First Defendant recovered the matter when the Claimant appealed and directed that a public inquiry be held. A Statement of Common Ground was agreed which included agreement that, subject to the imposition of appropriate conditions, the proposal was acceptable in terms of Ecology. It was further accepted that the tilted balance applied, then contained within paragraph 14 of the Framework, there being an agreed significant shortfall in the five-year housing land supply. No issue was raised in relation to any adverse nature conservation consequences arising from the proposal.
The Inspector’s report concluded that the appeal be allowed; however, some 13 days later, the CJEU handed down judgment in People Over Wind which made clear that in undertaking a screening assessment as to whether or not Appropriate Assessment is required for a plan or project under article 6(3) of Council Directive 92/43/EEC (“the Habitats Directive”) it is not permitted to take account of measures intended to avoid or reduce the harmful effects of the plan or project under consideration. This was a departure from domestic jurisprudence which had, since the case of R (on the application of Hart DC v Secretary of State for Communities and Local Government  EWHC 1204 (Admin), held that it was permissible to take account of mitigation measures, or measures designed to avoid or reduce the harmful effects of a plan or project, at the time when undertaking a screening assessment to examine whether or not Appropriate Assessment was required.
The parties were invited by the First Defendant to make representations as to whether or not an appropriate assessment was required and as to the correct application of planning policy in the light of the decision. Following such representations, the 2018 edition of the Framework was published and the parties were once more afforded the opportunity to make representations. Ultimately the Claimant was of the view that the conclusion of the Appropriate Assessment had not changed, namely the appeal proposals would not have a likely significant impact on the integrity of either of the SPA/Ramsar sites, such that the test had been passed and there was “no clear reason” under 11 d) i for refusing the development proposed nor were there any adverse impacts to weigh in the planning balance under 11d) ii. Furthermore, there were no changes in paragraph d) to the revised Framework that led them to conclude that the position as to five year housing land supply or the outdatedness of the Local Plan policies and FOAN had been materially affected by the revised Framework and proposed standard methodology for assessing housing need.
The First Defendant subsequently disagreed with the Inspector’s recommendation and refused the appeal concluding that the screening assessment was no longer legally sound. The First Defendant carried out a new screening, which concluded that an Appropriate Assessment was required, and conducted a further Appropriate Assessment which concluded that the proposed development would not adversely affect the integrity of any European site. However, as paragraph 177 of the Framework indicates that the presumption in favour of sustainable development does not apply where development requiring Appropriate Assessment is being determined, the tilted balance was not applied.
The Claimant appealed on five grounds, Ground 4 of which contended that People Over Wind was wrongly decided, the approach taken in Hart being the proper interpretation of the Habitats Directive in respect of screening assessments. It was contended that the issue was not acte clair on the basis that People over Wind conflicts with Hart and subsequent domestic authorities, and is inadequately reasoned and explained. A reference to the CJEU was sought.
Giving Judgment, Mr Justice Dove dismissed the Claimant’s appeal on all grounds.
People Over Wind
With regard to Ground 4, the Court noted that the relevant law in relation to Appropriate Assessments under the Habitats Directive was recently set out and reviewed in Canterbury City Council v Secretary of State for Housing, Communities and Local Government  EWHC 1211 (Admin) [see paragraphs 65-76 of that judgment] which concluded that the effect of People Over Wind on the domestic law authorities was “directly contrary to the approach which had been taken in domestic law in Hart and Smyth” such that “the approach to the interpretation and application of Article 6(3) of the Directive set out in those cases can no longer therefore be regarded as good law” [see paragraph 77 of that judgment].
In short, to take account of mitigation effects at the screening stage presupposes that there will be likely significant effects on the European site and therefore, based on the clear terms of the first sentence of Article 6(3), the requirement for Appropriate Assessment has been made out [see paragraph 38 of People Over Wind]. To fail to undertake Appropriate Assessment would circumvent the procedural safeguards provided by the Habitats Directive and pre-empting the outcome of the Appropriate Assessment by taking account of mitigation measures at the screening stage is illegitimate. It is now necessary to follow the approach set out in People Over Wind and to disregard any mitigation measures at the screening stage.
The Claimant asserted that the question which should be referred to the CJEU is “If, having regard to the mitigation proposed as part of the plan or project, the risk of significant effects can be excluded on the basis of objective information at screening stage, it is still necessary to carry out an Appropriate Assessment.” It was submitted that the approach in People Over Wind is incorrect, Hart representing the correct construction of Article 6(3) which does not prescribe the point at which mitigation measures should be taken into account, only that Appropriate Assessment should be carried out if significant effects are likely to arise and cannot be excluded on the basis of objective information.
The Court did not agree and found that:
- A full and precise analysis of the effects of a proposal must inform the decision made under Article 6(3) of the Directive which reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive and which is clearly derived from the language of Article 6(3).
- The rationale is that taking account of mitigation measures at the screening stage would compromise the practical effect of the Habitats Directive by circumventing the full and precise analysis required by Appropriate Assessment.
- The Appropriate Assessment must not have lacunae and must remove all reasonable scientific doubt in relation to the effects of the proposal [see paragraphs 36-38 of People Over Wind].
- The provisions of Article 6(3) of the Habitats Directive are procedural as well as substantive, since Appropriate Assessment includes the requirement that the competent national authority will not agree to the plan or project until it has ascertained that it will not adversely affect the integrity of the site and, if appropriate, after having consulted with the general public [see paragraphs 39 of People Over Wind].
- The taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.
- The domestic law line of authority based upon Hart is no longer good law.
Though perhaps the key focus of the Judgment is the confirmation of People Over Wind, in considering grounds 1, 2, 3 & 5 Mr Justice Dove made some interesting and helpful comments regarding the persistent approach of the Secretary of State changing the five-year housing land supply position after sitting on a decision for many months and with regard to the interpretation of policy.
Five-Year Housing Land Supply
In the context of their ground 5, the Claimant contended that both in the way in which the First Defendant went about reassessing the housing land supply, and also in the assessment of the weight to be attached to the housing land supply, the First Defendant fell into error. The Court did not agree.
- The First Defendant concluded that notwithstanding that the housing land supply position may have improved, this made no difference to the weight which was to be assigned to housing land supply issues in the overall planning balance.
- The First Defendant undertook a calculation to bring the assessment up to date. It was entirely open to the First Defendant to conclude that, notwithstanding some improvement in the housing land supply position, the weight which the Inspector had ascribed should continue to apply.
- The Claimant was afforded the opportunity to make representations about the standard method and the Second Defendant anticipated that housing need would go down as a consequence. The Claimant did not respond to the Second Defendant’s consultation response.
- The Technical Consultation had made clear that any change from the standard method in terms of the use of the most recent ONS projections would only be affected from the implementation of a change to the PPG therefore the First Defendant was applying his extant policy and guidance at the time when the decision was reached, not pre-judging what might emerge from the Technical Consultation.
- There was no justification for a further reference back to the parties and it made no difference to the decision that the First Defendant was reaching. The calculation of housing land supply involves the collation of a variety of judgments in relation to issues such as deliverability of housing land and/or the need to make adjustments to the requirement if there has been under supply in earlier years, and is, therefore, not a question of fact.
In the context of Grounds 1 and 2 relating to the application of paragraph 177 of the Framework, Mr Justice Dove found that:
- There was nothing unlawful in respect of the First Defendant’s decision relating to the application of paragraph 177 of the Framework, the starting point being that the text is clear and was applied in a straight forward and uncomplicated manner.
- Though the Claimant contended that the policy should be interpreted by reference to the First Defendant’s suggested intention of permitting the tilted balance to apply in cases where Appropriate Assessment is required and passed, there was “no warrant in the language of paragraph 177 to justify any such interpretation” and it was “simply not possible to interpret the policy in that way. What would be required is a departure from the policy rather than an exercise of interpretation”.
- Furthermore, in the context of Ground 2, there is “nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge”.
- The First Defendant did not fall into error by adopting a “black letter” or wholly inflexible approach to the application of paragraph 177 as alleged but rather the First Defendant made clear why, as an exercise of judgment, he was going to apply existing policy and not that which was being consulted upon in the Technical Guidance. To have done otherwise would have pre-judged the outcome of the process and it was an entirely rational exercise of judgment for the First Defendant to proceed as he did.
A copy of the full judgment can be found at: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2001.html