In R (on the application of Hart District Council) v Secretary of State for Communities and Local Government (2) Luckmore Limited (3) Barratt Homes Limited (2008), Hart District Council (HDC) appealed against the decision of the Secretary of State for the Department for Communities and Local Government to allow four appeals in relation to a proposed development of residential dwellings near a Special Protection Area (SPA). One of the main grounds of HDC’s appeal and the issue of wider interest relates to the appropriate stage for considering mitigating measures with regard to an appropriate assessment (AA) of the environmental impact of a development on an SPA.
Sullivan J’s judgement, in dismissing the appeal, resolves a number of issues relating to residential developments situated within 5km of SPAs. This has been a sticking point for developers for a number of years and the decision is helpful in that it points towards an appropriate method for aligning the interests of developers, planning authorities and Natural England in these cases.
The proposed development site is situated in Hartley Wintney and located approximately 1.5 kilometres from a site of special scientific interest, Hazeley Heath SSSI. Hazeley Heath, along with four other SSSIs within 5km of the development, forms part of the Thames Basin Heaths Special Protection Area.
As an SPA, the Thames Basin Heaths is protected by the Conservation (Natural Habitats, & c) Regulations 1994, the legislation which gives effect to the Habitats Directive (EC Dir 92/43). The regulations require the effects of any plan or project on an SPA which is not directly related to its management to be considered.
Furthermore, any plan or project likely to have a significant impact on the SPA must be subject to an AA.
A study into the proposed development by English Nature, (now Natural England), prior to the inquiry concluded that the development, in combination with other residential developments, was likely to cause significant damage to the SPA due to the disruptive effects of increased visitor numbers to Hazeley Heath and, in particular, dog-walkers.
In response to these fears, the developers proposed a number of mitigating measures. They included suitable alternative natural green spaces (SANGS) for dog-walkers which would be easily accessible to both the residents of the new development and other residents of Hartley Wintney. Natural England accepted these measures as sufficient to avoid an impact upon the SPA and agreed to their inclusion within a s.106 agreement, thereby negating the need for an appropriate assessment under the regulations.
Grounds of appeal
HDC’s appeal rested upon the argument that any mitigating measures included as part of a planned development should not be considered before an appropriate assessment has taken place. Guidance given in the Methodological Guidance on the provisions of Articles 6(3) and 6(4) of the ‘Habitat’ Directive 94/43/ EEC, Assessments of Plans and Projects Significantly Affecting Natura 2000 Sites was used to support this assertion, in particular at 2.6 where it states that ‘the competent authority must first consider the project or plan in the absence of mitigation measures that are designed into a project. Effective mitigation of adverse effects on Natura 2000 sites can only take place once those effects have been fully recognised, assessed and reported.’
Sullivan J dismissed the appeal and refuted this argument in particular. In his view, ‘if the competent authority is satisfied at the screening stage that the proponents of a project have fully recognised, assessed and reported the effects, and have incorporated appropriate mitigation measures into the project, there is no reason why they should ignore such measures when deciding whether an appropriate assessment is necessary.’
In arriving at this conclusion, Sullivan J highlighted the judgement in the cases of Waddenzee and Gillespie and pointed out that the provisions in the Habitat Directive are intended to aid effective environmental decision-making and not operate as a legal obstacle course. He went on to state that such mitigation measures should be considered by the appropriate authority at the screening stage but if they disagreed over or were unsure as to the likely effect of the measures an appropriate assessment should then take place. In addition, he held that the Secretary of State was entitled to depart from her inspector’s view that there were ‘serious doubts’ over the scientific basis of evidence provided by the developer.