Savage, R (on the application of) v Mansfield District Council & Anor

On 17 April 2013 Mansfield District Council (“the Council”) granted outline planning permission for a large mixed use development close to Harlow Wood. The permitted development extends over 169 hectares and includes up to 1700 dwellings, commercial uses, a primary school, green spaces and play areas. Ms Savage is one of a group of local residents who object to the development. She has been given permission to challenge the grant of the planning permission by judicial review.

Although the development site does not include any part of Harlow Wood, Harlow Wood itself is part of the Sherwood Forest region, in which there are substantial breeding populations of nightjar and woodlark. Some 300 metres to the south of the development site lies a Site of Special Scientific Interest (an “SSSI”) called Rainworth Lakes. Where proposed development is likely to affect an SSSI the planning authority must consult Natural England. The Council therefore consulted Natural England before deciding to grant planning permission. The grounds of challenge essentially fasten on alleged defects in that consultation process. In short they are:

The Council did not follow Natural England’s advice to carry out a “risk-based assessment” and by not doing so failed to comply with its legal duty;

The Council’s officers misled the Council’s planning committee about Natural England’s true position and their decision might have been different but for that fact;

The Council ought to have reconsidered the position between the date on which they resolved to grant planning permission and the date on which they actually granted it because there had been a material change of circumstances; and

One provision of a section 106 agreement was unlawful.

It is well known that, partly as a result of European legislation, environmental considerations are playing an ever greater role in the determination of planning applications. Directive 2009/147/EC (“the Wild Birds Directive”) required member states to take measures to maintain bird populations and to preserve and maintain diversity and habitats. Certain specified species of bird were to be given special protection by protecting their habitats. But article 4.4 also imposed a more general duty:

In addition Directive 92/43/EEC (“the Habitats Directive”) aimed to promote the maintenance of biodiversity by requiring member states to take measures to maintain or restore natural habitats and wild species listed in the Annexes to the Directive at a favourable conservation status, introducing robust protection for those habitats and species of European importance. Article 4 required member states to designate special areas of conservation in accordance with specified criteria. Article 6.1 required member states to establish necessary conservation measures for special areas of conservation. Article 6.3 stated:

The UK’s current response to the requirements of the Wild Birds Directive and the Habitats Directive is to transpose those requirements in the Conservation of Habitats and Species Regulations 2010 (“the Habitats Regulations”).

Regulation 61 of the Habitats Regulations provides, so far as material:

Regulation 5 defines the “appropriate nature conservation body” as Natural England. A local authority falls within the definition of a “competent authority” in regulation 7. A “European site” is defined by regulation 8. Thus under the Habitats Regulations themselves a site does not qualify for protection until it has actually been designated as a Special Protection Area (an “SPA”).

However, the obligation to consult Natural England has been widened by paragraph 118 of the National Planning Policy Framework (the “NPPF”) as follows:

Footnote 26 to this paragraph explains that:

It is clear from this footnote that a site does not qualify for protection under the NPPF until the Government has initiated public consultation on the case for its designation. A proposed SPA is known in the jargon as a pSPA. Perhaps I should explain that “Ramsar sites” are wetlands of international importance designated under the Ramsar Convention. They have no bearing on our case.

If a site becomes a European site after the grant of planning permission regulation 63 of the Habitats Regulations applies. It provides, so far as material:

Regulation 129 provides:

In addition to these regulations, regulation 9A (8) provides:

This tracks the duty imposed by article 4.4 of the Wild Birds Directive. It is not limited to SPAs or pSPAs but applies generally. This is confirmed by Case C-355/90 Commission of the European Communities v Spain in which the court held at [22] that the duty arising under article 4.4 (which is the origin of regulation 9A (8)) was not confined to areas where an SPA had already been established.

Section 97 of the Town and Country Planning Act 1990 (“the Act”) gives a local planning authority power to revoke a planning permission. Where the permission relates to the carrying out of building or other operations, the power must be exercised before the operations have been completed. If planning permission is revoked section 109 of the Act provides for the payment of compensation.

Section 106 of the Act provides that:

A planning obligation is enforceable against the person entering into the obligation and any person deriving title from him. The power to enter into planning obligations is limited to some extent by regulation 122 (2) of the Community Infrastructure Regulations 2010 which provides:

The application for outline planning permission was made on 8 February 2010. It was accompanied by an ecological assessment prepared after informal consultation with, among others, Natural England. The Council also consulted Natural England who gave their initial response in a letter dated 1 April 2010. Natural England said that the ecological assessment was “very comprehensive” and had “a very positive approach to providing biodiversity enhancement”. They were “generally supportive of the approach, survey methodologies, findings and recommendations made”. They “strongly welcomed” the work presented on nightjar. But they advised additional mitigation measures; and in particular a buffer zone of 400 metres from Harlow Wood. They followed this with a modified letter on 16 April in which they pointed out that “the Sherwood area supports a nightjar population that qualifies for consideration as to whether the area should be classified as an SPA for this species of European importance.” It was possible that an SPA boundary could include Harlow Wood. If it were to, then the Council would have to undertake a Habitats Regulation Assessment. They concluded:

In response the Council asked on 13 May 2010 for Natural England’s confirmation whether the site was covered by a pSPA or SPA and therefore “whether additional consideration is required beyond that which would normally be applied to a planning application”. They also asked for guidance on the process if there was no formal designation in place. Natural England replied on 3 June 2010. They said:

They went on to say, however, that there remained a possibility of an area of Sherwood Forest being recommended as an SPA, and that it would be beneficial for the Council to consider the implications of a future classification.

They went on to say that they recognised the uncertainty placed considerable difficulties on local planning authorities and concluded:

This advice was encapsulated in an Advice Note to Local Planning Authorities dated 28 June 2010. That advice note also said:

Disturbance to breeding birds form people, their pets, noise, traffic and or artificial lighting

Loss, fragmentation and / or damage to breeding and / or feeding habitat

Bird mortality arising from domestic pets and / or predatory mammals and birds

Bird mortality arising from road traffic and / or wind turbines

Pollution and / or nutrient enrichment of breeding habitats.”

Over the summer Natural England met the developers. They wrote to the Council on 8 September 2010 with an update. Their advice on the status of the site remained the same. They repeated that:

They had considered proposals by the developer for a barrier to protect the breeding ground of nightjar which they described as “a comprehensive and carefully considered approach.” All practical measures had been carefully designed and incorporated and there appeared to be “little else that could be added”. However, they reiterated the point that standard practice was for a 400 metre buffer zone to be established round SPAs elsewhere in the country. If Sherwood Forest were to be designated as an SPA it was “quite possible” that such a buffer would be required, in which case it would remove the majority of the residential element of the development. They concluded by saying that it was for the Council to take a risk based approach to determining the application and that:

The substance of this advice was repeated in Natural England’s letter of 16 November 2010, which was designated their “Formal Response” on all submitted documentation. The only significant addition related to the proposed barrier. Natural England commented that because the 400 metre buffer zone had been adopted elsewhere the effectiveness of the barrier remained “unproven and therefore uncertain”:

I should note three points at this stage. First, Natural England were not saying that the barrier and associated measures would not work. If they had thought that then they would doubtless have objected rather than remain neutral. They were saying no more than they did not know whether the measures would work. Second, their non-approval of the barrier was limited to a “pSPA or SPA situation”. Third, in that situation it was likely that a 400 metre buffer zone would be applied; and it was for that reason that they could not support the barrier and associated measures.

At some point, probably in early July 2011, Natural England saw the report that the Council’s planning officers intended to place before the planning committee. Natural England took the view, in an e-mail of 11 July 2011, that the report did not fully reflect Natural England’s advice “with specific regard to the issue of the need for a risk based approach and the possibility of a future Sherwood SPA. Whilst it could be argued that the points are not factually incorrect, it is considered that the report does not properly represent Natural England’s advice”. They asked for the e-mail to be placed before the committee. The substance of their comments was that:

On the same day Natural England re-issued their Advice Note in substantially the same terms as the June 2010 version.

The officers do not appear to have altered their report despite the e-mail of 11 July, no doubt because the planning committee was due to meet on the following day and the agenda and accompanying papers had already been sent out. The relevant sections read:

The planning committee met on 12 July. Although the e-mail from Natural England was not placed before the committee, the initial rubric of the minutes record that additional correspondence from Natural England was reported verbally. There is a transcript of what was said. Mr Cook, the planning officer, presented the report. In introducing it he told the committee that there had been a number of observations, and he mentioned that Natural England had contacted the Council to clarify their position. He continued (with emphasis added):

Mr Saxton, the chief planning officer also addressed the committee. He said (with emphasis added):

The committee then voted and with the aid of the chair’s casting vote the proposed development was approved, subject to the negotiation and finalisation of a section 106 agreement.

On 14 January 2013 Natural England wrote to the Council. They confirmed that there was still no pSPA or SPA in the area and therefore they did not consider that there was a specific legal requirement for the Council to undertake a formal appropriate assessment. They continued:

On 15 February 2013 Natural England sent another e-mail to the Council. In it they said that they had:

They also reminded the Council that they had advised that the barrier fencing was unproven and uncertain in its effectiveness; and reminded the Council of it legal duty under regulation 9 (8) of the Regulations. Further discussions took place between the Council and Natural England on the details of the conditions to be attached to the planning permission, but nothing turns on those.

By April the terms of the section 106 agreement had been finalised, and on 17 April 2013 the Council formally granted outline planning permission. The section 106 was made at the same time. The impugned provision in its original form was:

Paragraph 3 of the Third Schedule required the Council to use its reasonable endeavours to resist any attempt by others to seek an order for the revocation or modification of the planning permission. Clause 6 has since been redrafted to read as follows:

The change is that instead of prohibiting an application for compensation, the owners now covenant to pay the Council the amount of any compensation awarded. The modified version has not been executed but the developers have offered an undertaking to do so.

Since the first ground of appeal asserts that the Council did not follow Natural England’s advice to conduct a “risk-based assessment” it seems to me that the first question is: what was the status of that advice? Although the Council was obliged to consult Natural England about the potential impact of the development of the SSSI, no complaint is made in relation to the SSSI. The complaint is that the Council failed to follow Natural England’s advice about carrying out a risk based assessment in relation to the potential impact of the development on a possible pSPA or SPA. We have seen that under regulation 61 (3) of the Habitats Regulations a planning authority must consult Natural England. This duty arises if the planning authority is considering the grant of planning permission which is likely to have a significant effect on a European site. In such a case the planning authority must carry out an assessment. The reason why it must consult Natural England is “for the purposes of the assessment”. If no assessment is required, then it must follow that no consultation is required. The NPPF extends the obligation to pSPAs. In the case of a pSPA the planning authority must consult Natural England and (I assume) must conduct a habitat assessment. But a site only becomes a pSPA one the government has initiated consultation. That has not happened in the case of Sherwood Forest. It follows in my judgment that the Council had no obligation to consult Natural England about the potential impact of the development on nightjar or woodlark.

No doubt Natural England had the power to give advice to the Council under regulation 129 of the Habitats Regulations; and no doubt that advice, coming as it did from an expert body, would have been a material consideration. But I do not consider that it goes any further than that. In so far as the first ground of appeal, as developed in the skeleton argument, is founded on the premise that Natural England was a statutory consultee, that premise is, in my judgment, ill-founded. For the same reason in so far as that ground is founded on the duties of a public body to take into account the results of a consultation that it is not obliged to undertake, it is equally ill-founded.

In fact in oral submission Mr Edwards QC, on behalf of Ms Savage, accepted that as regards the question of nightjar and woodlark, Natural England was not a statutory consultee. But, he said, the Council gave inadequate weight to Natural England’s advice, coming as it did from an authoritative and responsible source. The problem with this argument is that, as Mr Edwards also accepted, questions of weight are matters for the decision maker; all the more so on issues that involve planning judgments. An attack based on an allegation that the Council gave too little weight to advice received from one particular source is almost bound to fail.

Next it is necessary to consider what Natural England’s advice was, and why it was given. To answer the second part of the question first, it was given because there was a risk that Sherwood Forest might be proposed as an SPA and a further risk that, if it was, its boundaries might include Harlow Wood in which event any planning permission would have to be reviewed. This seems to me to be clear from Natural England’s correspondence. The nesting habits of nightjar and woodlark would be affected to the same extent by the development whether or not Harlow Wood formed part of an SPA. In other words the risk to habitats is the same irrespective of the legal status of Harlow Wood. Thus the advice was all given in the context of a possible change in the legal rather than the physical landscape. This is also clear from Natural England’s letter of 8 September 2010, where having drawn attention to the requirement in the Habitats Regulations for a review of permissions in the event of designation as an SPA they went on to say that “Natural England has therefore advised” that the Council might wish to adopt a risk based approach. Part of the purpose of such an approach would be to provide “a degree of future-proofing”. In context “future-proofing” is nothing to do with the impact on the habitat of the birds, but on what the future might hold for the Council if it had already granted planning permission. The letter goes on to say that the advice was given in order for the Council to be adequately prepared in the event of (among other things) “a review of any extant permission.”

So one has to ask: what was the risk to which Natural England referred in advising a “risk-based assessment”? In my judgment the risk was that if the Council had already granted planning permission it would have to reassess the environmental impact of the development on habitats, and if detrimental effects could not be mitigated, the permission would have to be revoked or modified. From the Council’s perspective, therefore, the risk was ultimately the financial risk of having to pay compensation.

Moreover, as Natural England also said in their letter of 10 June 2010, having referred to the possible future classification of Sherwood Forest as an SPA:

Thus the “issue” to which Natural England referred was the risk of a future proposal or actual designation which would require a Habitats Assessment, and the possibility of a revocation or modification of a granted planning permission. The Council chose to meet that risk in two different ways. The first was by the acceptance of the protocol which the applicants had proposed for protecting wildlife in Harlow Wood. This was designed, after extensive collection of data, to mitigate or eliminate harmful effects of the development on the nightjar and woodlark populations. It included not only a physical barrier but also proposals for a ranger service to monitor the site, and the imposition of restrictive covenants prohibiting the keeping of cats. Although Natural England had said that the proposals for a barrier were unproven and uncertain, they nevertheless also said that the proposals in the protocol were “a comprehensive and carefully considered approach;” that “all practical measures available to try to prevent access by people and domestic cats” had been incorporated and there appeared to be “little else that could be added”. As we have seen Mr Cook, the planning officer, told the committee that it was his view that “adequate measures have been put in place to address issues relating to the PSPA at the present time”. The committee were entitled to accept that advice. The second was by clause 6 of the section 106 agreement which, if valid, protected it against the risk of having to compensate the developer for loss sustained as a result of revoking or modifying the granted permission. That is what the Council chose, and as Natural England had advised, the choice was for the Council to make.

I found it very difficult to understand precisely what more the Council was supposed to do, even if it had followed Natural England’s advice. The data had been collected, mitigation measures had been proposed and, in the Council’s view they were adequate. If all that the “risk based assessment” was to do was to incorporate Natural England’s suggestion of a 400 metre buffer zone, that would not have required any further assessment. All it would have required was the adoption of that suggestion.

Mr Edwards also submitted that the Council’s failure to conduct a risk-based assessment was an independent breach of the Council’s duty under regulation 9A (8):

One must remember that, in the UK, the full duty imposed by the Habitats Regulations already goes beyond established SPAs, because it also extends to pSPAs. In the case of a site which is not even a pSPA in my judgment the Council complied with its duty to “use all reasonable endeavours” by adopting the protocol which the applicants had proposed. I agree with the Council that the Habitats Regulations, supplemented by the NPPF, do not require a local planning authority to requirement to undertake a “shadow assessment” or other quasi-appropriate assessment in respect of sites which are not even pSPAs.

Moreover, as Mr Elvin QC submitted on behalf of the developers, Natural England did not object to the development; and their only reservation was based on the possibility of future classification as an SPA. If there had been any serious suggestion of a breach of the Council’s duty under regulation 9A (8) Natural England would have raised it.

The duty is, moreover, no more than a duty to “take all reasonable steps”. The steps proposed by the Council were, according to Natural England, “all practicable steps” that could be taken. It is not, in my judgment, seriously arguable that the Council failed to comply with its duty under regulation 9A (8).

I would reject the first ground of challenge.

The starting point here is that Natural England accepted that nothing in the officers’ written report was factually incorrect. By the time that Natural England had commented on the draft, it was too late to amend it before the meeting on the following day. It is true that Natural England’s e-mail was not placed before the committee, but if the substance of Natural England’s comments were fairly relayed to the committee, I do not consider that the committee’s decision would be vitiated: R v Selby DC ex p Oxton Farms (18 April 1997), [1997] EGCS 60 per Judge LJ.

The points to which Natural England drew attention in the e-mail of 11 July were these:

The report failed fully to reflect their advice of ‘no objection but also not able to support the proposal;’ and

The report referred to the protocol to protect Harlow Wood which included the barrier which Natural England had repeatedly said had unproven and uncertain effectiveness, and would be unlikely to be supported by Natural England if an SPA was in place. The written report quite wrongly said that the protocol had been “accepted” by natural England

The report (and the officers in oral amplification) wrongly conflated the risk to habitats and the risk to the public purse.

So far as the first of these points is concerned, Mr Cook told the committee:

He repeated that statement later in his presentation.

In my judgment that was a fair summary of Natural England’s position of ‘no objection but also not able to support the proposal.’ So far as the second of these points is concerned, Mr Cook told the committee:

Accordingly, although Mr Cook told the committee that Natural England did not accept the protocol he gave it as his own opinion that the measures were adequate in the context of a pSPA. Mr Saxton told the committee:

In my judgment that also fairly summarises Natural England’s position. It is also true to say that Mr Cook also told the committee that Natural England had advised taking “a risk based approach prior to the granting of outline planning permission”; and he also explained that if an SPA were to be declared a 400 metre buffer zone would be a likely feature of it. Thus the committee were told:

That Natural England neither supported nor objected to the proposal;

Natural England had not approved the protocol;

Natural England would not support the barrier in the event that a pSPA was declared;

If an SPA were declared it was likely that a 400 metre exclusion zone would be applied within which no residential development could take place.

Mr Edwards submitted that the officers’ explanation was deficient because it did not explain why Natural England took the view that it did. It is apparent, however, that the reason why Natural England took the view that it did was that they thought that if Harlow Wood became part of an SPA a 400 metre exclusion zone would be imposed. That potential consequence was explained to the committee. Next he said that the officers did not explain why the Council had declined to follow Natural England’s advice to carry out a risk based assessment. But as I have said the risks were those consequent on the possible designation of Harlow Wood as part of an SPA and the Council did in fact choose to address that risk in the way that I have explained. Finally he said that the officers (and hence the Council) had wrongly conflated the risk to habitats and the risk to the public purse. I do not agree. In my judgment the very purpose of Natural England’s advice was to enable the Council to be prepared for a possible change in the legal status of Harlow Wood. That had everything to do with the public purse. In my judgment Natural England’s position was fairly explained to the committee.

It is true that Natural England have subsequently expressed reservations about the way that the Council reached its decision and remain concerned that their position might not have been fully explained. But Natural England were not, as far as I can see, shown the transcript of what the officers told the committee before the debate began.

So far as the third point is concerned, it is not one that Natural England raised in commenting on the written report. Since they had clearly studied the report with care, if they had been concerned about the way in which the risk had been described, they would surely have raised it. In fact, for reasons I have explained, I think that the risk that Natural England had in mind was indeed the potential risk to the public purse contingent on a change in the legal status of Harlow Wood.

I would reject the second ground of challenge.

In the absence of some new material consideration arising between the date of the resolution to grant and the grant itself, there can be no duty to re-open the decision.

Mr Edwards sought to rely on the fact that between the date of the resolution to grant planning permission and the actual grant the Council’s officers produced a decision tree to set down the procedure for assessing the risk of development on nightjar and woodlark, and for consulting Natural England. However, although this document was published on the Council’s website, it was for internal use and had no status as a development plan policy, a draft development plan policy, or a supplementary planning document. In order to have achieved any of those statuses, the regulatory requirements of the Town and Country Planning (Local Planning) (England) Regulations 2012 (including public consultation) should have been followed. They were not. The decision tree was no more than a methodology. In my judgment it was not a material consideration.

It follows that the only material considerations relied on are those arising under the first two grounds of challenge. Since I have rejected both of them, this ground must fail too.

The argument under this head is that the committee did not decide that the development would be acceptable in planning terms in the absence of the section 106 agreement. The section 106 agreement (and its promise to eliminate financial risk to the council in the event of a revocation of the planning permission) was something on which the committee placed weight. The obligation in clause 6 of the section 106 agreement neither overcomes a ‘legitimate planning objection’ nor is necessary to do so. Consequently it falls foul of regulation 122 of the Community Infrastructure Levy Regulations 2010.

The original section 106 agreement purported to preclude any application for compensation in the event of a revocation or modification of the planning permission. It has since been modified so as to provide for a payment by the developers of the amount of any compensation awarded. It is common ground that the modified obligation falls within section 106 (1) (d).

So the question is whether it is struck down by regulation 122 (2) of the Community Infrastructure Regulations. Regulation 122 will only be engaged if that particular planning obligation was a reason for granting planning permission. If proposed development is acceptable in planning terms the securing of additional benefits by means of a planning obligation is not unlawful: Derwent Holdings Ltd v Trafford BC [2011] EWCA Civ 832 at [15].

In my judgment there is a disconnect between clause 6 of the section 106 agreement and carrying out the development itself. Clause 6 will only come into operation if the planning permission is revoked or modified; and the development affected by the revocation or modification does not go ahead. If the development has already been built, then revocation is impossible. I fail to see how the mere grant of planning permission has any environmental (or indeed any other tangible) impact on the world. It is only the implementation of the planning permission which has that effect. But once the planning permission has been implemented, clause 6 cannot operate to the extent that implementation has taken place. So I fail to see how clause 6 can be said to have been used to overcome a planning objection to the development. Regulation 122 simply does not bite.

For the same reason it necessarily follows that the committee did think that the development was acceptable in planning terms; and must have thought so even without clause 6 of the section 106 agreement. If the development went ahead, and was built out, then the development would exist in the real world but clause 6 would never come into operation. So the decision to grant planning permission necessarily implies that the committee thought that the built development would be acceptable in planning terms. This is supported by the fact that in the reasons given for the grant of planning permission the Council stated that they had had regard to the presence of protected species including mitigation measures and that “the proposal will not cause harm to the environment”. The stated reasons for the grant of permission do not mention this clause in the section 106 agreement at all. Nor does the summary in the officers’ report recommending reasons for the grant.

I would dismiss the challenge on all grounds.

I agree.

I also agree.