This appeal arises from the Respondent’s grant of planning permission, on 4 June 2020, to the Interested Party (Mr John Morgan), to which the Appellant (Mr David Sahota) objects. The Appellant brought a claim for judicial review to challenge the grant of planning permission but that claim was dismissed by HHJ Worster (sitting as a judge of the High Court) (“the judge”), in a judgment given on 25 August 2021.

The issues on this appeal are: (1) whether the judge erred in admitting the evidence of Mr James Bisset, the ecology officer at the Respondent authority; and (2) whether the Respondent’s planning committee was misled into believing that there was no need for a Habitats Regulations Assessment (“HRA”).

At the hearing we heard from Mr Alex Goodman for the Appellant and Mr Matthew Henderson for the Respondent. I express the Court’s gratitude to them both for their written and oral submissions.

On 30 July 2019 the Interested Party applied to the Respondent for planning permission for the proposed development, which was for the erection of a cattle shed and an extension to an existing agricultural building. The site of the proposed development is located within the upper Golden Valley in western Herefordshire in the rural parish of Dorstone. The River Wye is a Special Area of Conservation (“SAC”) and is also a Site of Special Scientific Interest (“SSSI”).

The Appellant is concerned that, as the proposed development contemplates the expansion of livestock farming, this would increase manure production and the spreading of manure on the surrounding fields, which would run off into nearby watercourses, in particular the River Wye.

The Respondent’s planning committee considered the application and resolved to grant planning permission following a meeting on 3 June 2020. The committee’s resolution was in accordance with the recommendation of the Respondent’s officers, as contained in their report to the committee.

On 20 August 2019, Mr Bisset had been consulted by the Respondent’s case officer about the application for planning permission. Mr Bisset is a qualified ecology officer with over 35 years’ professional experience. He provided written advice to the planning officer, which stated:

That advice was inserted verbatim into the officers’ report to the planning committee, at para. 4.2. I will set out other relevant parts of the report below.

In the course of these proceedings in the High Court, the Respondent filed a witness statement from Mr Bisset, dated 23 October 2020. Objection was (and is) taken to the admission of that statement. I will refer to Mr Bisset’s evidence in more detail below.

In his judgment the judge rejected the objection to the admission of the evidence of Mr Bisset. He then dismissed the claim for judicial review on its merits.

As I have mentioned, para. 4.2 of the officers’ report set out verbatim the advice which had been received from the ecology officer.

At paras. 6.24-6.26, under the heading ‘Ecology and Biodiversity’, the report said:

The report concluded, at para. 6.30, as follows:

It appears from the transcript of the meeting of the planning committee on 3 June 2020 that members of the committee asked questions of the planning officers about ecology matters. The answers in substance repeated what had been said in writing, that the advice from the ecology officer was that there was no cumulative impact assessment of what the site could produce because the ecologist had taken the view that there is no objection to the proposal.

Regulation 63 of the Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) (“the Habitats Regulations”) transposed article 6(3) of Council Directive 92/43/EEC (the Habitats Directive) into domestic law. The Habitats Regulations remain part of domestic law although the United Kingdom has now left the European Union.

Regulation 63 provides that:

Although the initial grounds of appeal were not drafted in this way, the Appellant has adopted what was said by Stuart-Smith LJ in granting permission to appeal on 19 January 2022 and has formulated the issues which arise on this appeal in the following way:

The authorities on the admissibility of “ex post facto” evidence in judicial review proceedings were summarised by this Court (comprising Bean LJ, Sir Keith Lindblom SPT and Sir Stephen Irwin) in R (United Trade Action Group Ltd) v Transport for London [2021] EWCA Civ 1197, [2022] RTR 2, at para. 125. The authorities, many of which were cited to us also, include R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302; R (Lanner Parish Council) v Cornwall Council [2013] EWCA Civ 1290; R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152, [2018] PTSR 43; and Kenyon v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 302, [2021] Env LR 8. It is unnecessary to recite all of the seven principles which were identified by the Court in United Trade Action Group but several pertinent points can be derived from them.

It follows from what I have said so far that the basis on which this Court can interfere with the judge’s decision to admit Mr Bisset’s evidence in the present case is a limited one. As was common ground before us, the role of this Court is its usual one when sitting as an appellate court. It is not our function simply to substitute our own decision for that of the judge. We must ask ourselves whether the judge exercised his discretion wrongly. In particular, did the judge fall into error as a matter of principle? And, even if he did not, was the conclusion to which he came one that was not reasonably open to him?

When approached in that way, I am unable to accept Mr Goodman’s submissions. In my view, the judge did not fall into error as a matter of principle. He correctly directed himself as to the relevant principles and the authorities on this topic. He reminded himself of the need for caution before admitting Mr Bisset’s evidence. Furthermore, I do not think that the conclusion to which he came was one which was not reasonably open to him. To the contrary, I agree with the judge that it was helpful in this case to admit Mr Bisset’s evidence in order to elucidate what had been before the committee. Indeed, as will become apparent later when I address Issue 2, it could be said that it is in the Appellant’s interests, and not necessarily the Respondent’s, for Mr Bisset’s evidence to be admitted, since this enables Mr Goodman to attack the reasoning in that evidence which would not have been apparent on the face of the officers’ report to the planning committee.

Mr Goodman made three fundamental submissions before us in support of his argument on Issue 1. The first submission is that there was a structural defect in the judge’s reasoning. By this Mr Goodman means that, since the decision-maker was the planning committee and not Mr Bisset, it was not open to the judge to admit his evidence by way of elucidation of the committee’s reasons for granting planning permission. In support of that submission Mr Goodman relied on the decision of the High Court in R (Shasha) v Westminster City Council [2016] EWHC 3283 (Admin), [2017] PTSR 306, in particular at paras. 42-43 and 56 (Mr John Howell QC, sitting as a deputy High Court judge).

This submission comes up against the problem that it is well established that, although one is concerned with the members’ reasons and not the planning officer’s, where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless there is some indication to the contrary: see R v Mendip District Council, ex parte Fabre (2000) 80 P & CR 500, at 511 (Sullivan J), a passage cited with approval by this Court in R (Palmer) v Herefordshire Council [2016] EWCA Civ 1061, [2017] 1 WLR 411, at para. 7 (Lewison LJ). In the present case, I can see no reason to avoid drawing the reasonable inference that the planning committee did grant planning permission for the reasons advanced by the officers in their report to it. Accordingly, the suggested distinction between the committee’s reasons and those of the officers (including Mr Bisset) falls away.

Mr Goodman’s second submission is that Mr Bisset’s evidence was not simply elucidation but rather contradicted what had been said to the committee in the officers’ report. I disagree. In my view, it was open to the judge to conclude that the evidence of Mr Bisset simply set out his “workings”, which helped to understand why he had reached the conclusion which he had, and which had been fairly and fully set out in the officers’ report to the committee. In this context it is important to bear in mind what Sullivan J said in Fabre, at page 509: part of a planning officer’s expert function in reporting to the committee must be to make an assessment of how much information needs to be included in the report in order to avoid burdening a busy committee with excessive and unnecessary detail. Furthermore, as was said in Fabre and has frequently been reiterated in similar cases, it should be borne in mind that the planning committee comprises local councillors, who are likely to be familiar with their own local area. In the present case that is clear from the transcript of the planning committee meeting which we have before us. For example, the local councillor in whose ward the proposed development site is located made detailed and pertinent remarks at that meeting.

In this context it is also important to bear in mind what was said by Lady Hale JSC in R (Morge) v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268, at paras. 35-36. As Lady Hale emphasised in that passage, in this country planning decisions are taken by democratically elected councillors, who are responsible to, and sensitive to the concerns of, their local communities. They have professional advisers who investigate and report to them. Those reports must be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the court should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. Lady Hale also emphasised that democratically elected bodies go about their decision-making in a different way from courts. It is their job, not the court’s, to weigh the competing public and private interests involved.

Mr Goodman’s third submission is that the judge’s decision to admit Mr Bisset’s evidence in this case goes “against the grain” both of the nature of judicial review proceedings; and the nature of planning decision-making in this country.

I do not agree that what the judge did in this case goes against the grain of judicial review proceedings. He was well aware of the need for caution before admitting this type of evidence but was entitled to do so consistent with the nature of judicial review proceedings. In this context Mr Goodman placed reliance on what was said by Coulson LJ in Kenyon, at para. 28, that in judicial review proceedings it is generally inappropriate to seek to rely on documents which were not available to the decision-maker. In my view, Coulson LJ’s particular concern in that passage was that admitting ex post facto documents risks undermining the process of judicial review because the court will be asked to conduct a kind of “rolling review”, in which nothing is ever finalised or settled. This serves only to encourage the attitude that it is always possible to “have another go.” Although I agree with Coulson LJ about the risks of permitting a “rolling review” they do not arise on the facts of the present appeal. What Mr Bisset’s evidence does is not to refer to information which has arisen after the decision under challenge was taken. Rather it refers to material which he had in his mind at the time and which helps to explain how he reached the conclusion which he did and which was then conveyed to the planning committee through the officers’ report.

Turning to the “grain” of the planning system, I accept Mr Henderson’s submission for the Respondent, that Mr Goodman has simply been unable to identify any legal obligation which was breached by the procedure adopted in this case. Although it is true that in a general lay-person’s sense, the planning system is open to public scrutiny, there are specific legal obligations, for example to consult the public in certain contexts, which simply do not arise in the present context. By way of example, Mr Henderson showed us Article 15 of the Town and Country Planning (Development Management Procedure) England Order (SI 2015 No. 595). Article 15 requires a planning application to be publicised. That was done in the present case and has nothing to do with the admissibility of Mr Bisset’s evidence.

Further, there is a provision in regulation 63(4) of the Habitats Regulations themselves which requires a competent authority to consult the public (“take the opinion of the general public”) if it thinks it appropriate to do so: as Mr Henderson pointed out, this shows that, when the legislator wished to cater for public participation in the decision-making process, it did so. The fact that there is no specific provision which deals with the present situation is telling.

For the above reasons I would reject the Appellant’s submissions on Issue 1.

On behalf of the Appellant Mr Goodman submits that the officers’ report misled the planning committee by advising that an HRA was not required in this case. He submits that regulation 63 of the Habitats Regulations requires a competent authority to undertake an “appropriate assessment” before giving consent to any project likely to have a significant effect on a European site. It is common ground that the River Wye SAC is such a site. It is also common ground that an appropriate assessment did not take place; this is because it was considered to be unnecessary by the Respondent, on the advice of its officers.

Mr Goodman submits that the test under regulation 63 is whether scientific doubt can be excluded as to the possibility that the proposal could, in combination with other developments, have an adverse effect on the River Wye SAC. He submits that the officers’ report did not properly advise the planning committee of that test, and the report’s reasoning that, because the site was not itself within the SAC, there were “therefore no likely significant effects” was wrong in law. This was because the site and all run off from it is hydrologically connected to the River Wye SAC, so that the mere fact that the site was not within the SAC was not determinative of the potential impacts as the advice seemed to suggest. Furthermore, as Mr Goodman emphasised before us, the Appellant’s fundamental complaint is that the officers, including Mr Bisset, did not consider what would be the cumulative impact of the increase in manure production at the proposed development site when combined with the manure produced and spread in other parts of the farmholding.

In this context Mr Goodman showed us the witness statement of Simon Maiden-Brooks. The judge permitted the Appellant to rely on that statement only to a limited extent, going to the issue under section 31 of the Senior Courts Act 1981 (which is no longer a live issue before this Court). The judge did not permit the Appellant to rely on the witness statement for wider purposes. Nevertheless, Mr Goodman referred us to that statement, in particular paras. 35-36, which state:

I will return to that evidence below when I set out my conclusions on Issue 2.

Before us particular reliance was placed by Mr Goodman on Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] PTSR 1417, at para. 83, where Sales LJ said:

Mr Goodman submits that the present case was not one of those “rare” cases in which it was “obvious” that no appropriate assessment was required. He also emphasised before us that the threshold for an HRA is a very low one. For that proposition he relied in particular on the Opinion of Advocate General Sharpston in Sweetman v An Bord Pleanála (C-258/11) EU:C:2013:220, [2014] PTSR 1092, at paras. 47-49, where she said that the “possibility”of there being a significant effect on a European site will generate the need for an appropriate assessment for the purposes of article 6(3) of the Habitats Directive.

It was common ground before us that the principles which govern this kind of challenge were summarised by Lindblom LJ in R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, [2019] PTSR 1452, at para. 42. As Lindblom LJ put it at para. 42(2):

It is also important to keep in mind the points emphasised by Lindblom LJ in para. 41. First, the Planning Court (and this Court also) must always be vigilant against excessive legalism infecting the planning system. The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but (at local level) to elected councillors with the benefit of advice given to them by planning officers. Further, they are entitled to expect good sense and fairness in the court’s review of a planning decision, not the hypercritical approach which the court is often urged to adopt.

In the specific context of the Habitats Regulations, Lindblom LJ gave the following guidance in R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404, [2016] Env LR 30, at para. 65:

As Sir Keith Lindblom SPT pointed out in R (Wyatt) v Fareham Borough Council [2022] EWCA Civ 983, at para. 9, there is a wealth of case law relevant to article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations, both in the Court of Justice of the European Union (“the CJEU”) and in domestic courts. Some basic points emerge, which he then helpfully set out in ten sub-paragraphs. It is unnecessary for present purposes to recite those in full although I have them all in mind. Particular points arising from them deserve emphasis in the present appeal.

First, the duty imposed by article 6(3) and regulation 63 rests with competent authorities and not with the courts. Whether a plan or project will adversely affect the integrity of a European protected site is always a matter of judgment for the competent authority itself. That is an evaluative judgment, which the court is neither entitled nor equipped to make for itself. In a legal challenge to a competent authority’s decision, the role of the court is not to undertake its own assessment, but to review the performance by the authority of its duty under regulation 63. The court’s function is supervisory only.

As was said by Sir Keith Lindblom in Wyatt, at para. 9(3), when reviewing the performance by a competent authority of its duty under regulation 63, the court will apply ordinary public law principles, conscious of the nature of the subject-matter and the expertise of the competent authority itself. If the competent authority has properly understood its duty under regulation 63, the court will intervene only if there is some Wednesbury error in the performance of that duty.

As he continued, at para. 9(4), a competent authority is entitled, and can be expected, to give significant weight to the advice of an expert national agency with relevant expertise in the sphere of nature conservation, such as Natural England. Although the authority may lawfully disagree with, and depart from, such advice, if it does so, it must have cogent reasons for doing so. Further, the court for its part will give appropriate deference to the views of expert regulatory bodies.

In R (Champion) v North Norfolk District Council [2015] UKSC 52, [2015] 1 WLR 3710, at para. 35, Lord Carnwath JSC pointed out that there is an important distinction between the Habitats Directive/Habitats Regulations on the one hand and the Environmental Impact Assessment (“EIA”) Regulations on the other: the former contain no equivalent to “screening” under the EIA Regulations. As he pointed out at para. 39, at least in this country the use of the term “screening” in relation to the Habitats legislation is potentially confusing, because of the technical meaning it has under the EIA Regulations. The formal procedures prescribed for EIA purposes, including “screening”, preparation of an environmental statement, and mandatory public consultation, have no counterpart in the Habitats legislation.

At para. 40 Lord Carnwath cited with approval the decision of this Court in No Ad Astral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88, [2015] Env LR 28, at paras. 63-69. There Richards LJ considered the language of article 6(3) of the Habitats Directive and noted the absence in the Court’s judgment in Sweetman of any support for the contention that there must be a screening assessment at an early stage in the decision-making process. At para. 41, Lord Carnwath continued that the process envisaged by article 6(3) should not be overcomplicated. As Richards LJ had pointed out, in cases where it is not “obvious”, the competent authority will consider whether the “trigger” for appropriate assessment is met. But this “informal threshold decision” is not to be confused with a formal “screening opinion” in the EIA sense. The operative words are those of the Habitats Directive itself. All that is required is that, in a case where the authority has found there to be a risk of significant adverse effects to a protected site, there should be an “appropriate assessment”.

Before us Mr Goodman placed emphasis on the decision of the Divisional Court (Leggatt LJ and Carr J) in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, in particular at para. 98, where, in giving the judgment of the Court, Carr J explained that a public authority’s decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it, for example that a significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Mr Goodman submits that this is just such a case, because both the officers’ report to the planning committee and the evidence of Mr Bisset (if it is admissible) contain a demonstrable flaw in the reasoning process.

In order to assess that submission it is important to look at the guidance given by Natural England as to the methodology to be used, on which Mr Bisset relied when he considered the issues on which his advice was sought in the planning process.

Although the guidance from Natural England, which is dated 3 June 2019, is expressly concerned with SSSIs it was common ground before us that it also covers European sites such as the SAC in the present case.

At page 2 the Guidance states as follows:

In a table, under the heading ‘Important Notes’, the Guidance states, at para. 2, that the IRZs seek to guide consultations relating to the likely impacts of development on SSSIs under Schedule 4(w) to the Town and Country Planning (Development Management Procedure) (England) Order 2015.

Appendix 2 of the Guidance states that Natural England’s local team staff have reviewed the IRZs and where necessary they have been varied to reflect specific local circumstances “such as known water quality issues”.

Natural England also makes available information to local planning authorities which is not in the public domain. It is clear on the evidence before us that Mr Bisset relied on such non-public data in the present case. I turn to his evidence now.

At para. 11 of his witness statement Mr Bisset said that:

At paras. 13-16 Mr Bisset continued as follows:

It is also helpful in this context to refer to the Herefordshire Council position statement on development in the River Lugg catchment area (February 2020). In relation to Habitat Regulations Assessments, the position statement says that the Respondent (in its role as competent authority) must carry out such an assessment on any relevant planning application that falls within the red and purple areas shown on the attached plan. Where there is a likely significant effect the council must carry out an appropriate assessment.

It is common ground before us that the application site in the present case does not itself fall within either the red zone or the purple zone on the attached plan but that part of the farmholding does fall within the purple zone.

The position statement also states that, where certain criteria are in place, phosphates would be unlikely to reach the river as there is no pathway for impacts. With no pathway for impacts there is no need for a further Habitats Regulations Assessment. Before us Mr Henderson submitted that that is the situation in the present case.

By way of contrast to the position in England, Mr Goodman drew our attention to the position statement of Natural Resources Wales in relation to SAC designated rivers and phosphates. There it is stated:

The summary of Natural Resources Wales’s current position is as follows:

Interesting though it is to be shown what the position would be if the proposed development site were on the other side of the border between England and Wales, this is simply not relevant to this appeal. It is inherent in the scheme of devolution that there may be different laws and policies in England and Wales.

I accept Mr Henderson’s submission (summarised at para. 56 above), essentially for the reasons which are set out in the evidence of Mr Bisset. In particular Mr Bisset’s reasons at paras. 15-16 of his witness statement make it clear that there were no relevant effects of the proposed development on the River Wye SAC, whether taken in isolation or in combination with other plans or projects. As he expressly stated at para. 15 of his statement, Mr Bisset’s conclusion was based on his own expert experience. Further, it was based on the methodology recommended by the expert body in this field, Natural England.

On analysis, the Appellant’s real complaint on this appeal is not so much that the planning committee was misled by the officers’ report (the advice of Mr Bissett was accurately relayed to the committee by it); nor even that Mr Bissett’s evidence was wrongly admitted by the judge (the subject of Issue 1), since it may assist the Appellant if the court is able to have regard to Mr Bisset’s evidence. It is rather that Mr Bissett’s advice was wrong.

But in order to succeed in that argument the Appellant would have to do more than show that others (including other experts such as Mr Maiden-Brooks) might take a different view. What has to be shown is that there are public law grounds which would entitle the court to intervene by way of judicial review, in particular that there was a demonstrable error in the reasoning process; or that the conclusion was irrational.

Having regard to the appropriate standard of review and on the evidence which I have summarised above, I have reached the conclusion that there are no such public law grounds in this case. Accordingly, I would reject the Appellant’s submissions on Issue 2.

For the reasons I have given I would dismiss this appeal.

I agree.

I also agree.