PPG11 Ltd, R (on the application of) v Dorset County Council & Anor

Trigon Hill Quarry, a few miles north-west of Wareham, Dorset, is an open cast clay quarry which has been in operation since the 1960s. Permissions exist under which clay can be extracted from the site until 2015 over an area of about 31 hectares. The site continues to operate as a quarry though large parts of it are now worked out.

The interested party (“Viridor”) applied to the Defendant, Dorset County Council (“Dorset”) for planning permission to use the quarry as a landfill site for controlled waste. Prior to submitting a formal application they entered into informal discussions with Dorset, other statutory bodies and nature conservation organisations. The scheme as presented sought permission to deposit waste for some 20 years commencing in 2002 after which the site would be restored to match the surrounding heathland area. The proposed access road, some 1.2 km in length, was routed so as to avoid land of an ecologically sensitive nature, save for a short distance where it crossed an area of existing heathland. The net result of this scheme would be that the two areas of heathland lying north and south of the clay quarry, each of which is a Site of Nature Conservation Interest (“SNCI”), would be reunited upon the completion of the filling of the quarry when it would be covered by a new managed heathland habitat.

On the 18^th January 2002 Dorset’s planning committee resolved to grant permission on certain conditions. The Claimant, a limited company formed as an action group from those opposed to the scheme, seeks an Order quashing the decision on the grounds that it is unlawful in two respects. The first is that Dorset has failed to observe the statutory prohibition on granting planning permission “unless they have first taken the environmental information into consideration”; it is said that they have failed to find, as an essential part of their decision making process, whether the project would have “significant adverse effects” on the environment. Secondly it is said to have failed to have regard to the statutory scheme for the strict protection of certain European protected species.

The statutory framework

Regulation 3 of the 1999 Regulations, which applies to “every EIA application” forbids the planning authority to;

“Grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration …. ”

An “EIA application” for the purposes of this case is defined by Regulation 2(1) as a;

“Development likely to have significant effects on the environment by virtue of factors such as its nature, size or location”

Regulation 2(1) continues:-

“ “Environmental information” means the Environmental Statement including any further information, any representations made by any body required by these regulations to be invited to make representations, and any representations duly made by any other person about environmental affects of the development;

“Environmental Statement” means a statement – (a) That includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of the assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part II of Schedule 4.”

So it will be seen that a would-be developer has to include in his Environmental Statement as a minimum requirement the information set out in the second part of Schedule 4 and, to the extent that it is reasonable to do so, the rather more detailed information set out in the first part. For the purposes of this case no argument has been addressed to me on the impact of any difference between the two parts, indeed both sides have focused on the minimum requirement of Part II. I shall follow their example. It will therefore be necessary to set out Part II in full.

It requires:-

“1.

A description of the development comprising information on the site, design and size of the development.

2.

A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.

3.

The data required to identify and assess the main effects which the development is likely to have on the environment.

4.

An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects.

5.

A non-technical summary of the information provided under paragraphs 1-4 of this part.”

Mr. Fordham for the Claimant criticises the order of these 5 paragraphs, as indeed did one judge in the authorities to which I will have to refer. As a matter of historical fact the order follows precisely Article 5.3 of the European Directive. But, says Mr. Fordham, logically the first three paragraphs should be in the order 1, 3, 2 in order to reflect the sequence in which these matters should be dealt with. Though paragraph 4 and 5 play no part in this application, the logic of Mr. Fordham’s approach is that the re-numbering should be 1, 4, 3, 2, 5.

By Regulation 19, where a planning authority receives an Environmental Statement and is of the opinion that additional information is needed for it to comply with the requirements of an Environmental Statement, it shall notify the applicant who has to provide such information.

As to the Claimant’s second point, the European Directive on the Conservation of Natural Habitats and of Wild Flora and Fauna 92/43/EEC addressed the Europe-wide problem of the continued deterioration of natural habitats and serious threats to an increasing number of wild species. It acknowledged the need to define certain species as meriting priority in terms of conservation. It required member states to take requisite measures to establish a system of strict protection for certain listed animal species. It permitted, where there was no satisfactory alternative, provision for derogation from that protection for a number of reasons including:

“….. other imperative reasons of overriding public interest including those of a social or economic nature …..”

The domestic regulations giving effect to this Directive are the Conservation (Natural Habitats Etc.) Regulations 1994 (“the 1994 Regulations”). By Regulation 3(4) it is enacted that:

“Every competent authority in the exercise of any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions”

Dorset is plainly a “competent authority” within the definition regulation.

The 1994 Regulations list 13 species found in Great Britain which are called “European Protected Species of Animals” and these include of relevance to this case bats, sand lizards and smooth snakes. Regulation 39 makes it an offence deliberately to capture or kill one of these species or to disturb it, take or destroy its eggs or damage or destroy its breeding site or resting place. It bestows a privileged form of protection on each individual member of each listed species.

Regulation 44 exploits the power given by the European Directive to derogate from this prohibition. It states:

“Regulation 39 …. [does] not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.

2.

……..(e) ….. other imperative reasons of overriding public interest including those of a social or economic nature ….”

The history of the application

In the non-technical summary the Environmental Statement contained these words:

“On completion the site will be restored with heathland and vegetation. This will considerably enhance the site, as it will reconnect two areas of Significant Nature Conservation Interest presently separated by the quarry. The landfill and land raise will restore the north/south overland flows which will improve the supply of water to wetland areas north and south of the site. The resulting improvements in habitat will benefit the ecology of the area.”

In the section of the statement dealing with ecology in detail it was indicated that a desk survey had taken place, taking the form of consultation with Dorset Wildlife Trust, Dorset Environmental Records Centre, Herpetological Conservation Trust (“HPC”), English Nature, Dorset County Council and a number of individuals. There had also been a field survey of the whole site undertaken on 29^th October 1998 and a map of habitats was included. The impact on fauna was then considered under individual headings of mammals, birds, reptiles and insects and an evaluation was performed. Though Mr. Fordham was inclined to speak dismissively of this section of the statement as “broad brush” in its approach no attack is made on it on grounds of irrationality or otherwise. There was then a section headed “impact and mitigation” which concluded:

“The proposed development has been designed to avoid the [SNCI’s] and therefore minimise the impact on these areas. The final landscaping of the landfill will help restore an area of derelict land and the introduction of an agreed management plan for the southern mire will prevent its further decline.”

It is common ground that there was substantial consultation following the submission of this application, including two public meetings and the submission of a mass of written material, all of which was before Dorset when its relevant committee met. It also had before it a report from its Director of Environmental Services and the advice of the County Ecologist. As the planning committee accepted their views it is agreed that I should consider them together with the committee’s own resolution when deciding this claim.

In his report the Director considered the adequacy of the EIA work done by the applicant in the particular area of nature conservation. At paragraph 9.47 he noted that the site access would impinge on -

“ ……. small pockets of regenerating heathland – and parts of this area may well provide some limited habitat for reptiles whilst vegetation in these areas could also provide nesting sites for Nightjar and Woodlark as well as Dartford Warbler. However the scale of mitigation measures being imposed including management of the whole of the SNCI, would make available considerably more habitat for these and other bird species than is currently available….. provided these measures can be properly secured (and I am recommending appropriate conditions and a use of a Section 106 Planning Agreement to cover this) I am satisfied that it would provide adequate mitigation for any territorial loss or disturbance that would result from the development.

9.48

Provided those measures are adequately secured, it is considered that in this particular case the planning authority can reasonably and rationally conclude that there would not be “significant adverse effects” on protected species or important areas for nature conservation.”

As this carefully chosen language suggests, the Director had in mind a decision of this Court (R –v- Cornwall County Council, ex p. Hardy [2001] Env.L.R. 25, 473.), to which I will have to refer later. He said in terms that he thought the situation his council faced was a different one from that faced by the Council in that case.

His report continued at 9.49:

“The nature of the species and habitat involved means that concerns relating to protected and other birds can be adequately addressed through a combination of ensuring mitigation measures are in place prior to any clearance of nesting or foraging areas and then restricting tree felling and scrub clearance so that it does not take place during the bird breeding season. Similarly the scope of the mitigation being proposed (with the additional measures being recommended in conditions) means that reptiles/herpetofauna present in areas around the site margin and along the line of the proposed access and office/weighbridge area can satisfactorily be addressed by a condition providing for survey, capture and translocation.”

The Director recorded that “given the importance of this issue” the County Ecologist had consulted English Nature on the conclusions and approach; they had accepted it but wanted greater weight to be given in the form of their incorporation into a legal undertaking.

When the committee met to consider the environmental information provided it first recorded the views of its officers that for their part they were satisfied with its adequacy. It also heard evidence from the County Ecologist (recorded at 2.13) that:

“….. although he considered that a full fauna survey on the effects to (sic) reptiles and birds would have been helpful he did not feel that this would prevent him from concluding that, given the use of conditions to regulate any granting of permission, the measures being proposed would not have any significant adverse effects on either species, habitat or environmentally sensitive sites in the area.”

He pointed out that the proposals to restore the site to dry heath were welcome and would benefit the bird population, and the proposals to secure management of the adjoining SNCI were a “very substantial ecological benefit”. He also informed the committee (recorded at 2.14) that there was:

“…… no recent evidence of highly protected or endangered species on the proposed landfill site and associated areas. The effects on any reptiles present such as the sand lizard or smooth snake would be minimal, both in terms of their low numbers and the ample scope for their relocation if necessary. Should there be a need for relocation (particularly in the case of the smooth snakes which might reside in the vicinity of the proposed access road) an application for a licence for their handling and removal would need to be made to [DEFRA].”

The committee concluded on this topic:-

“Objectors considered that the information provided had been incomplete, given the absence of a survey, and that there were still inconsistencies and scope for conjecture in the Director’s report regarding environmental issues. Nevertheless, the County Ecologist was satisfied that there was sufficient information to enable him to advise that there were no likely significant adverse effects”.

The passages I have cited above from the Director of Environmental Services and the County Ecologist’s evidence to the committee, which plainly the committee accepted and acted upon, are crucial to the Claimant’s case. Mr. Fordham submits that they show in action what he refers to as “the Lebus trap”, an erroneous and unlawful approach to the assessment of environmental information highlighted in an authority to which I will refer later. Both the Director and the County Ecologist are failing, he says, to identify or make any prior and discrete finding as to the presence or absence of “significant adverse effects” which are the likely result of this development, independently of the measures which may be appropriate to counter them. Instead they have short circuited the requirement to make such a finding or appraisal by going immediately to a consideration of the measures envisaged to reduce any adverse affects that there might be. Dorset says that a finding can be seen in the Director’s report at 9.47 and the Ecologist’s advice at paragraphs 2.13 and 2.14, to the effect that the ecological impact of this scheme overall was either minimal or slight in ecological terms and that reliance by them on the putative effects of further surveys was in effect a form of reassurance or at most a partial basis for such a finding, which connotes a lawful and proper approach to their task.

Shortly before the committee met, Dorset had received written representations from among others HPC, who in a letter dated 4^th January 2002 had strongly advised that a proper and prior reptile survey be carried out, ideally between March and May 2002, in the absence of which they thought it was “premature to consider the applicant’s proposed package”. In response to this on 10^th January 2002 the County Ecologist Mr. Sterling visited the site with Dr. Corbett of HPC, the writer of that letter. They considered various areas of habitat capable of supporting reptiles (it will be borne in mind that this was not a survey at what Dr. Corbett considered the ideal season). In a witness statement made for the purpose of these proceedings Mr. Sterling said that as a result of that visit he considered there were certain areas which might support reptiles, which included the sand lizard and smooth snake, but none of this led him to change his conclusion the effects on each of the protected species were:

“….. likely to be very slightly adverse at worst. I could not conclude that effects were significantly adverse”.

The conditions subsequently imposed were therefore imposed as a matter of prudence only, or “belt and braces” as Mr. Straker QC calls it in his skeleton argument for Dorset.

Mr. Fordham rightly urges me to treat this statement with care. It is no disparagement of Mr. Sterling’s integrity as a witness to say that once battle lines are drawn, as they have been in this litigation, I should be careful about accepting what he says now in preference to what appears from the record made by the committee of his submission to it at the time. From that record, argues Mr. Fordham, if the “Lebus trap” is indeed a trap Mr. Sterling led the committee into it. Nowhere in the committee’s record of his advice, he claims, does it appear that Mr. Sterling said to the committee that though there were likely effects on, for example, reptiles they did not viewed as a whole qualify as “significant adverse effects”. Throughout his evidence to them, he claims, he was praying in aid the consequences of mitigation/remedial measures in reaching the conclusion that the project would not have any such significant adverse effects. Indeed Mr. Straker QC does not shrink from accepting that at least in part the committee’s conclusion was based on the adequacy of mitigation measures. He says that they were not in error in so concluding.

I should complete my review of the evidence. The committee resolved to grant planning permission to this scheme subject to a number of conditions. The only one relevant to my decision was Condition 4, headed “Habitat maintenance/enhancement and measures to safeguard unprotected species”. It prohibited any land filling, tree felling or clearance of scrub or vegetation until adequate measures had been taken, in accordance with a programme and detailed methods statement, to:

“(a)

….. carry out a further habitat survey of the Trigon Heaths SNCI ….. and, based on that survey, to identify a detailed rolling programme of habitat maintenance and enhancement measures; …..

(c)

Provide a detailed terrestrial survey to identify the presence, size and territory of any protected species (including a survey for badgers and any European protected species especially reptiles), within the site and adjacent land ….. and

(d)

Identify all necessary arrangements and provide (i) for the rescue of reptiles likely to be affected by the development and their translocation …. (ii) mitigation measures in relation to badgers and other protected species”.

The Claimant’s argument is that these exercises were an essential part of the EIA itself and needed to be done prior to the grant of permission. There are two reasons, they say, why this is so. The first is that the primary purpose of the EIA procedure is to give full information to the decision makers at the time they make the decision, see R –v- North Yorkshire County Council ex p. Brown [2000] 1AC 397, per Lord Hoffmann at 404D. The second is to enable democratic participation in the process to take place prior to decision, when for example detailed criticisms of the scope of these surveys or discussions as to their effect and meaning could take place, rather than to leave them as conditions to be complied with after permission is given but before development should start. The Defendant’s case is that these were sensible conditions to impose from an abundance of care and caution, and their imposition was not inconsistent with a finding that this scheme taken as a whole had no significant adverse effects. They also argue that post-grant surveys of this nature are much more likely to yield accurate and useful data, given the timescale involved, than any such survey carried out prior to grant; after all, they argue, the smooth snake and sand lizard do not stay still.

The authorities

There were two decisions of Sullivan J. relating to the same proposed development site in Rochdale. In the first R –v- Rochdale Metropolitan Borough Council ex p. Tew and Others [1999] 3 PLR 74 the authority had granted planning permission in outline form for a proposed business park. The Claimants challenged this on the grounds, inter alia, that there had been a failure to give the information required under the then equivalent of Part II paragraph 1 of the 1999 Regulations. The application for permission had been a bare application describing the development proposed in the widest of terms. Sullivan J. allowed the claim on the grounds that without a description of the development proposed the likely impact of it could not begin to be assessed. As he put it at 95G:

“One is not seeking certainty as to the environmental effects of the project, which would be unobtainable, one is merely seeking the specified information that will enable the likely significant effects to be assessed. While it is for the local planning authority to judge the adequacy of the specified information …. information that is capable of meeting the requirement for specified information in para [1] must be provided”.

He held that the description of the development must be sufficient to enable the main effects that the development is likely to have on the environment to be identified and assessed, to enable the likely significant effects on such matters as flora and fauna to be described and to enable mitigation measures to be described where significant adverse effects are identified. Although it was not in issue in that case Mr. Fordham says it is significant to note the sequence of decision-making that Sullivan J. appears to set out. He held that it was no answer to say that some of the specified information would be provided in due course at the reserved matters stage, since if significant adverse impacts are identified at that stage it would be too late to prevent the development from proceeding. He continued:

“…. that is not to suggest that full knowledge requires an Environmental Statement to contain every conceivable scrap of environmental information about a particular project. The Directive and Assessment Regulations require likely significant effects to be assessed. It will be for the local planning authority to decide whether a particular effect is significant, but a decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms of Schedule [4], would conflict with the public’s right to make an input into the environmental information and would therefore conflict with the underlying purpose of the Directive.”

Round two of the Rochdale litigation took place a year later in R –v- Rochdale Metropolitan Borough Council ex p. Milne [2001] JPL 470. The developer had substantially revised his application so that it was no longer a “bare outline” application but included and referred to a master plan. Objection was still taken to it. The Environmental Statement accompanying the revised application, when dealing with mitigation measures, proposed that further bat survey and newt survey work be carried out and further discussions held with English Nature. Sullivan J. repeated and expanded his earlier finding that sufficiency of information provided was for the local planning authority to decide. It had to decide it, he said, not as a question of primary fact but as a question of planning judgement taking all local circumstances and considerations into account. He said at 114:

“The local planning authority are entitled to say “we have sufficient information about the design of this project to enable us to assess its likely significant effects on the environment. We do not require details of the reserved matters because we are satisfied that such details, provided that they are sufficiently controlled by condition, are not likely to have any significant effect.”

At 126 he found that while the Council had deferred its decision on some matters of detail which “may have some environmental effect” it had not deferred a decision on any matter which was “likely to have a significant effect”. He categorised the Claimant’s criticisms of the Council as unreal and stemming from an over literal interpretation of the words of the Schedule, saying that in the case of the bats and newts he did not see why the paragraph 2 questions should not comprise the undertaking of further surveys and discussions and the devising of detailed mitigation measures in the light of what those revealed. Dorset say that this authority countenances an interpretation of the regulations which permits the working out of certain details subsequently to the grant (here those in relation to mitigation measures) and that it also shows that the deferral of such measures does not necessarily mean that the Environmental Statement itself is defective in a material respect.

I should next consider a group of three cases which can conveniently be considered together. In each there had been no EIA because the relevant authority decided none was needed. Mr. Fordham argues that this is a distinction without a real difference in that the same “gateway” requirement is present when considering the question of whether to have an Environmental Statement at all as when considering the extent to which such a statement must go.

The first of these cases was British Telecommunications Plc –v- Gloucester City Council [2001] EWHC (Admin) 1001, a decision of Elias J. The objections focused on archaeological remains. The Council, while not disputing the presence of some such remains, relied on the protection afforded to them by the mitigation strategy which was part of the Scheme. One of the Claimant’s arguments was that this was approaching the matter in the wrong way – essentially the same argument that Mr. Fordham puts in the forefront of his arguments before me. At 73 the learned Judge put the question this way:

“Can [the Council] conclude that there would be significant effects, save for the fact that they have required (or at least will require) the developer to take mitigating steps whose effects [will be] to render such effects insignificant? In my judgement they cannot”.

His reason was that this would short-circuit the democratic input into the question of whether the proposed measures would be successful or whether there were better or more effective measures which could be adopted in their stead. The question of whether or not there are likely to be significant environmental effects should be approached by asking whether these would be likely to result, absent some specific measures being taken to ameliorate or reduce them. As he put it:

“…. if they would, the Environmental Statement is required and the mitigating measures must be identified in it”.

The Claimant in this case relies heavily on this decision. It is important to note that at paragraph 74 that the Judge described it as “clear” on the facts of that case that:

“….there would be potentially highly significant effects on the archaeology unless measures are directed to eliminate them. Accordingly Mr. Scott erred in law in taking these measures into account when deciding that no significant effect was likely.”

If, therefore, it is right to say that the approach to Schedule 4 questions is fact-sensitive it is plain that the facts in BT were strong from the Claimant’s point of view.

The next authority is R. (on the application of Lebus) –v- South Cambridgeshire District Council [2002] EWHC 2009 (Admin). At the heart of the Council’s refusal to require an EIA was the view of their relevant officer expressed in these terms:

“In short whilst I and my senior officers appreciated the existence of potential [significant] adverse impact in some respects we agreed that in every respect such impact would be insignificant given proper planning conditions and management enforceable under Section 106”.

That the word I have inserted in square brackets within this quotation needs to be added is apparent from paragraph 40 of the Judgment. This is the case which has given rise to what Mr. Fordham calls “the Lebus trap”, articulated he says at paragraph 41 of the Judgment, to the effect that it is an erroneous approach to link the conclusion as to whether or not there are likely significant adverse effects with the mitigation measures to be put in place to counter them. The Judge’s criticism of what happened in that case was:

“The question was not asked whether the development as described in the application would have significant environmental effects, but rather whether the development as described in the application subject to certain mitigation measures would have significant environmental effects”.

This approach he condemned as wrong in law; but it is to be noted that he sounded a note of caution at paragraph 45 to the effect that:

“Each case will no doubt turn upon its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures”.

Dorset seize on this acknowledgement that these statements must be considered on their particular facts. Where, they argue, there is an Environmental Statement it must be legitimate for there to be some areas where the local authority can be allowed to form its view by reference to the development as a whole in all its aspects, and one of those views can be that there is no significant adverse environmental effect. This overall view can include such matters as the overall long-term ecological benefits of the Scheme, the long-term management regime that will be put it place, and any relevant conditions. They argue that in this case the evil that is pointed out in the cases we have seen so far has not come to pass here, in that the evidence is there was extensive public consultation on all matters including the mitigation proposals. It was the absence of public consultation on mitigation matters which seems to have been critical in Tew, BT and Lebus.

The third case in this trilogy is Gillespie –v- The First Secretary of State 20^th January 2003 [2003] EWHC 8 (Admin). The development related to an area of contaminated urban land in a densely populated area. The Secretary of State had concluded that the development was “unlikely to cause significant effects on the environment” and therefore had not required an EIA procedure. He expressed himself satisfied that the remediation required could be dealt with by a condition. That condition is set out at paragraph 39 of the Judgment of Richards J. and in summary required before any development commenced that there be a detailed site investigation;

“to establish the nature, extent and degree of the contamination present on the site”,

and that it should also;

“Propose a scheme for remediation of this contamination including measures to be taken to minimize risk to the public..”

This therefore was a case in which the public had no opportunity at all even to inform itself of what the problems of contamination associated with this development might be, let alone put forward any objections on an informed basis or proposals for remediation/mitigation. In his Judgment Richards J. discussed the decisions in Tew, Milne, BT and Lebus extensively as well as Hardy a decision to which I will have to return.

He acknowledged that once the Secretary of State had conceded that his decision was, at least in part, based on an assessment of the effectiveness of the proposed remediation measures he was at risk of falling into the Lebus trap. He regarded the whole question as not without difficulty, as indeed do I. Like Sullivan J. before him he did not think that standard mitigation measures (for example those which control dust and noise during construction) should be ignored when assessing whether a development is likely to have significant environmental effects. He approved of what Sullivan J. had said in Milne about the effect of questions of detail being left over to the reserved matters. He agreed that such things as statutory controls could influence the local authority making this assessment, and concluded this section of his Judgment at 76:

“Thus as it seems to me it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigation measures could properly be taken into account in assessing the likely significant environmental effects of the development”.

Nevertheless, he agreed with the essential rationale, as he called it, of BT and Lebus, while apparently approving the notion that the matter is one of fact and degree.

Viridor referred to a second decision of Mr. Justice Richards handed down on the same day as Gillespie. In R. (Jones) and Mansfield District Council 20^th January 2003 [2003] EWHC 7 (Admin) there had been an application for outline planning permission and the local authority had not required EIA to be applied. Complaints had been made by a relevant interest group that there had been no adequate ecological surveys of the site. The committee had felt able to reach its conclusion that it had sufficient information to form a judgement as to whether significant adverse effects were likely, even though it knew that further survey work would need to be carried out. In dismissing the challenge to the decision Richards J. at paragraph 56 was at pains to point out that there was a difference between a development having some effect on a species and it having a likely significant impact. The fact that the Council had stipulated, by extracting undertakings and imposing conditions, for further surveys -

“ …with a view to gaining a better understanding and possibly minimising any adverse effect” (emphasis added)

was something which he plainly did not view as inconsistent with the decision which they had formed, namely that no EIA was necessary because the development was unlikely to have significant effects relating to bats.

The difference between Jones and Hardy is interesting. In Hardy the local authority had decided in accordance with strong expert advice to carry out surveys to ensure that bats would not be adversely affected, in other words to enlighten their state of complete ignorance as to whether the bats would be affected in any way or not. In Jones there had been surveys, no bats had been discovered, and therefore there was information on which the Council could reasonably form a decision that there was no need for EIA, notwithstanding that some benefit was to be derived from further surveys.

The Claimant says that in Jones there is no contingent conclusion of the kind it attacks in the instant case, and that the Lebus trap was plainly avoided. Two distinct decisions can be seen to have been made neither of which could be attacked as irrational. Hence it is not surprising that Richards J. felt able to hand down the Judgment in Gillespie and that in Jones on the same day.

The last first instance authority with which I will have to deal is R –v- Cornwall County Council ex P. Hardy [2001] Env. L. R. 25 at 473. This case is strongly relied on by the Claimant as supporting its claim. Mr. Hardy sought to set aside a grant of planning permission to fill a former quarry site on the grounds that the authority did not have the necessary information required by the 1999 Regulations.

The Defendant Council had received strong advice from English Nature and Cornwall Wildlife Trust, set out at paragraphs 20 and 21 of the Judgment of Harrison J., to the effect that further surveys should be carried out on bats and badgers as well as liverwort, described as a nationally scarce plant. No bats by that stage had been found on the site, but a prominent feature of the site was a number of open mineshafts and associated underground workings which, it is plain from the report, were accepted as places which might be expected to provide a habitat for bats, a European Protected Species. No exploration of any sort had been carried out on these mineshafts. The Director’s report to the Defendant Council is significant. He stated:

“However, the Environmental Assessment …. raised a number of issues of nature conservation concern relating to protected and/or uncommon species. These included bats, badgers and a nationally scarce Liverwort. English Nature and the Cornwall Wildlife Trust have indicated that these aspects would require further study by the applicant before the development was commenced and appropriate mitigation required as part of any subsequent consent. This can be achieved by appropriate planning conditions. The application therefore raises no significant nature conservation issues and further mitigation can be required by planning condition. The proposed restoration will, in my view, add to the nature conservation value of the entire landfill/raising site in the long term …..” (emphasis added)

Harrison J. formulated the question he had to ask in this way at paragraph 58:

“….. Whether the respondent could rationally conclude that those nature conservation aspects [sc. the impact on bats, badgers and liverwort] did not amount to “significant adverse effects”.”

The crux of the case at paragraph 60 was his finding that it was difficult to see how the committee could have accepted its Director’s advice in the light of their acceptance of the advice of English Nature and Cornish Wildlife Trust. He pointed out that bats were a European Protected Species. If their presence was revealed by the surveys and it was found that they were likely to be adversely affected it was in his view -

“ …. an inescapable conclusion having regard for the system of strict protection for these European Protected Species that such a finding would constitute a significant adverse effect …..”

He therefore held at paragraph 62 that having decided that those surveys should be carried out the planning committee;

“… simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys”

He therefore found that the decision to accept the environmental statement in that case was irrational.

It is interesting to read on in the Judgment. Harrison J quashed the grant solely on the basis of the Council’s decision vis-à-vis the bats. The difference between their approach to the bats on the one hand and the badgers and the liverwort on the other was that the former, as he stressed in the Judgment, was a European Protected Species, the distinction on which the case appears to have turned. He did not need to decide what the position would have been had the bats not have been in the picture, but paragraph 65 strongly suggests it would have been different, there being no evidence of significant adverse effect on the badgers and it being open to the Council to conclude as a matter of judgement that the liverwort did not need to be significantly affected by the ditches and pipelines.

Dorset says one can see two highly influential factors at work here. The first is the strict protection accorded to the bat as a species, combined with the second, namely the fact there was an entirely unexamined area of this site in existence which was, or might well have been anticipated to be, a resting place for what could have been a significant number of this species.

The Claimant says this case helps it considerably. It shows that, absent evidence on which the local authority could reasonably conclude that there was no likely significant adverse effect on a species (as for example was not the case in respect of the badger where there was such evidence), the developer cannot be allowed to defer his assessment of such effects by taking into account his consideration of the mitigation response to them. Whereas in Hardy the grant was quashed for irrationality Mr. Fordham argues that his case is stronger because Dorset have said in effect “There are no likely significant effects because of the mitigation measures”, which amounts he says to an error of law.

Dorset and Viridor seek to distinguish Hardy from the present case. They argue that here the County Ecologist could and did form the view (see paragraph 21 above) that the numbers of protected species were “low” and that there was “no recent evidence” of them on the site or in the areas associated with it, also that the effects on any reptiles present “would be minimal” – see the Committee Resolution 2.14. There was an ability to translocate the European Protected Species if they were involved, under licence (not an option in the case of the bats) and/or re-route the road which was the only ecological problem (no fauna were under threat within the limits of the pit itself). By contrast, in Hardy there was a complete absence of knowledge about an area of the site potentially relevant to an European Protected Species.

Hardy does not mean that a defendant cannot form the decision that it does not need a survey to reach a conclusion about the absence of significant effect; and where such a defendant in fact goes on to obtain or make provision for a survey that is no more than a prudent approach, such as was in play in Jones, to establish whether any changes had taken place on the ground between the last survey and the starting of work, events which could well be up to 5 years or more apart in time.

Principles of relevance to be derived from the first instance authorities:

I was not in the result persuaded by the decisions that Part II paragraphs 1, 2 and 3 have to be approached in the rather mechanistic, sequential and discrete way contended for by Mr Fordham. Any appearances to that effect in Tew at 96A and Hardy at 57 are far from clear, are obiter, and face the embarrassment that if this is the right approach the Regulations and the Directive require re-ordering at the least. Furthermore though the Part II requirements must be construed purposively it is not insignificant that paragraph 2 embraces both the information as to mitigation measures and significant adverse effects, under the same roof so to speak, and in that order.

In those cases where the planning authorities’ decisions have been struck down one can see clear deficiencies in the evidence which they had before them. In Tew there was no description at all as to what the development comprised. In BT it was clear that what was proposed would have potentially highly significant effects on the archaeological remains. In Lebus the officers recognised in terms that there was a potential for significant adverse impact on the environment. In Gillespie there was a complete absence of information as to the nature, degree and extent of contamination of the soil. In Hardy the mineshafts were plainly potential sites where bats might be found and which were entirely unexplored. In each of these cases the Court ruled that it was not permissible for the authority to fall back on post-grant survey conditions to make up for this lack of evidence on which to base a finding as to an essential feature of Part II. That, as it seems to me, is as far as the "trap” identified by Mr Fordham extends.

In the cases, however, in which the authorities’ decisions withstood attack it is possible to see that there was some material on which they could reasonably have relied to reach a decision as to all relevant Part II matters. In Milne the master plan incorporated in the outline application served to win the day for the Council despite its loss in Round 1. In Hardy, had the decision rested on the badgers and liverwort alone, it is tolerably clear the Council would have succeeded on the basis that there was no evidence of significant adverse effects. In Jones the Committee felt able to form the view there was some adverse effect but it was not likely to be significant. In none of these cases did the imposition of a condition as to further investigation vitiate the prior decision to grant; rather it appears to have been treated as no more than a legitimate and perhaps sensible further step to minimise any non-significant adverse effects which might have been anticipated.

The Court of Appeal’s decision in Gillespie

The decision of Richards J was upheld in the Court’s decision handed down on 27^th March 2003, [2003] ECCA Civ. 400. The judgments also comment on BT, Lebus and Milne to which I have referred above. The principles of relevance to the case I have to decide appear to me to be these:

Dorset and Viridor are supported by the Court of Appeal, as it seems to me, when they urge me not to lose sight of the overall position which obtained in relation to this application. If I apply this approach it is possible to see in the Director’s report and the Ecologist’s evidence, both plainly crucial to Dorset’s decision, two strands of thinking. First, neither of them believed there was likely to be a significant adverse effect on the relevant ecology resulting from this project. There was material on which each was entitled to form this belief independently of the putative effects of mitigation. Second, both thought that whatever adverse effects there might be, which by definition were not significant adverse effects, would be met by the post-grant conditions proposed. Undoubtedly they drew comfort generally from these conditions, and to some extent, but not I believe a very great extent, they had regard to them in reaching their decision on the absence of significant likely adverse effects. In my judgement this was not an unlawful approach to the questions they had to consider, and so the attack on Dorset’s decision on the first ground fails.

In my judgement Dorset and Viridor are right when they argue that the authoritative guidance I receive from the Court of Appeal in Gillespie shows that there is no artificial wall to be constructed between considering the development as a whole and considering proposed mitigation measures. The advice of Dorset’s officers which I have summarised at paragraphs 19-21 above, to the extent that it was supported by the remedial proposals, was not relying on or influenced by anything which could be described as non-modest, complicated or controversial (save perhaps as to arguments at the margin concerning timing and methodology). What was contemplated involved well-understood techniques of survey and, possibly, translocation on what was likely to be a very limited scale. In Hardy language it was the badgers rather than the bats.

Therefore in my judgement the attack on Dorset’s decision on the first ground fails.

The Habitat Directive

The Claimant argues that the way in which Dorset should have had regard to these Regulations is by asking themselves whether what they as a public body were doing enabled someone else to infringe them. Dorset say that they had to have regard to them in the sense that they had to be aware of them, as plainly they were, and they had to consider whether their terms in any way prevented this project from moving forward. There is nothing that did do so. They were entitled to have regard to the derogation machinery, to the extent that the need for it might arise, and the role of DEFRA in ensuring that appropriate protection was maintained for the three protected species. If authority is needed for the latter proposition it can be found in Smith v. Secretary of State for the Environment, Transport and Regions 5^th March 2003 [2003] EWCA Civ. 262 where Waller LJ said at para 33 that it was permissible for a decision-maker to:

“contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives”

They faced a different problem from that involved in assessing the “main effects” or “significant adverse effects” of the project as a whole. A development might well pass scrutiny under the EIA procedure but breach the 1994 Regulations, for example if it necessarily or probably would lead to a breach in relation to even a single specimen of a protected species. It is possible also to envisage circumstances, say involving a developer who was entirely ignorant of the requirements of the Regulations, or one whose past conduct gave rise to the likelihood that he would turn a Nelsonian eye to their observance, in which the planning authority might have to act in a particular way, either by informing the developer of his obligations or policing his compliance with them. But this case does not involve these problems, or any others akin to them. The resolution was passed with full knowledge of the impact of the 1994 Regulations so far as they impinged on it, and it incorporated a rational scheme for meeting their requirements. In my judgement there is no force in this second ground.

For the above reasons this claim must fail.