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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

04 JUL 2013

R (on the application of Prideaux) v Buckinghamshire County Council [2013] EWHC 1054 (Admin); (2013) PLLR 075

Planning - environment - EU law - waste management - Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (‘the Habitats Directive') - Conservation and Habitat Regulations 2010 - proper role of local authority - duties applicable to Natural England - derogation - National Planning Policy Framework - adequacy of reasons

The Conservation and Habitat Regulations 2010 did not require a local authority to carry out the same assessment as was required of Natural England by the regulations; nor was it responsible for enforcement in the same way as Natural England. The local authority was not to be judged against a duty which did not apply to it.

29 April 2013

Administrative Court

Lindblom J

(1)        The claimant (P) sought to challenge planning permission granted by the defendant (B) to allow the construction of an energy from waste facility on site near P's home.

(2)        P argued that B had failed to comply with the requirements of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (‘the Habitats Directive'); that B had failed to apply the Government's planning policy for nature conservation as contained in the National Planning Policy Framework; and that B had failed to provide adequate reasons for the grant of planning permission.

(3)        Lindblom J held (1) that regulation 9(5) of the Conservation and Habitat Regulations 2010 (the 2010 regulations) required the local authority to have regard to the requirements of the Habitats Directive to the extent that it might be affected by the grant of planning permission. The Regulations also place Natural England under a duty to exercise its functions in order to ensure compliance with the Directive. One such function is the granting of derogation licences, which could be granted where there was an imperative reason of overriding public interest. It could only do so where it was satisfied that there was no satisfactory alternative and that the action the licence permitted would not be deterimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range. The effect of R (Morge) v Hampshire County Council [2011] WLR 268 was to clarify that this assessment was for Natural England and not the local authority to make. B was not required to enforce the 2010 Regulations, only to consider whether its decision would impact upon the subject matter of the directive. B was not to be tested in relation to a duty which was properly Natural England's (R (on the application of Woolley) v Cheshire East BC [2009] EWHC 1227 (Admin) doubted) [81] - [89].

(4)        B had discharged its duties by considering in detail the likely effect on protected species and alternative routes. Although derogation was to be used a last resort, the guidance containing this principle was not to be treated as statute. There was no requirement within the Directive that a derogation licence should be refused if a less harmful alternative existed. B had been given detailed advice on derogation licences and was aware that Natural England no longer objected to the development, therefore it was entitled to conclude that it was likely a derogation licence would be granted [99] - [103], [112] - [123].

(5)        It was not for the court to review B's conclusions as to the nature, extent and acceptability of the effects of granting planning permission. B had been entitled to rely on the evidence placed before it in relation to ecological impact, as well as the information provided by Natural England, whose objections had been mitigated. B's decision was reasonable and fitted national policy [130] - [131], [135] - [136], [147] - [157].

(6)        Although planning authorities were required to give reasons, they were not required to state each provision of Directives and Regulations and each policy which they had considered. The reasons given by B were brief but they were sufficient [164] - [166].

Permission granted; claim for judicial review dismissed

Key Paragraphs

[3] - [10] - Background

[11] - [80] - Factual background

[81] - [123] - The role of the local authority under the Directive and the 2010 Regulations

[124] - [158] - The local authority's approach to the National Planning Policy Framework

[159] - [168] - Reasons

[169] - Conclusions

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