Hargreaves v Secretary of State for Communities and Local Government & Ors

An assertion that the Inspector erred in law by “ … failing to reconsider whether this was a development likely to have significant environmental effect and thus require EIA”;

The Inspector erred in law in failing to conduct an Appropriate Assessment in accordance with the Habitats Directive and/or the Wild Birds Directive and/or the Conservation of Habitats and Species Regulations 2010 ("the Habitat Regulations"); and

The Inspector acted in a manner that was procedurally unfair because he failed to invite the Claimant or EHAG “… to participate in discussion of the same and/or make representations about…” the proposed mitigation.

In paragraph 25 of his skeleton, Mr McCracken sought permission to amend the grounds by adding a further ground to the effect that the grant of planning permission was unlawful for the reasons set out in the skeleton argument lodged on behalf of the Claimant. This was not objected to by either of the Defendants who were represented before me and I give permission accordingly. The SoS and CLP dispute each of the grounds relied on.

By TCPA s.288 any person aggrieved by any order or action of the SoS to which the section applies may apply to the High Court for an Order quashing the order or decision challenged. By Regulation 30 of the EIA Regulations the reference in s.288 to actions by the SoS extends to the grant of planning permission by the SoS in contravention of Regulation 3 of the EIA Regulations. The decision of the Inspector to grant permission is to be treated as that of the SoS for present purposes. Thus if it could be demonstrated that the planning permission granted by the Inspector had been granted in contravention of Regulation 3, then the Claimant would be entitled to seek an order under TCPA s.288 quashing that decision. It is not open to the Court on an application of this sort to quash the decision of the SoS to grant a negative screening declaration. If such relief was to be sought it could and should have been sought in judicial review proceedings. I accept however, that if it could be demonstrated on the facts that (a) the Inspector had jurisdiction to remit the negative screening direction for further consideration and (b) the Inspector acted unlawfully or irrationally in failing to exercise that jurisdiction then the decision to grant planning permission ought to be quashed.

The Claimant’s case that the Inspector ought to have exercised the jurisdiction to remit is advanced on the basis that in the circumstances the SoS acted unlawfully in giving a negative screening direction. He does not assert that there were circumstances that became apparent only after the direction was made that if known at the time would have led to a different conclusion being reached. Thus what is being submitted is that the Inspector ought of his own motion to have remitted the Direction for reconsideration on the basis of erroneous decision-making by or on behalf of the SoS. If this is to form the basis of a credible challenge then the errors are likely to have to be fundamental and obvious. I question whether this is a realistic approach in the absence of a submission by at least one party to the Inspector that this course ought to be adopted, where primary legislation makes the direction determinative and where judicial review of the decision of the SoS is in any event available to a party affected by it.

Failing to apply the Waddenzee [2005] Env. L.R. 14 at 43-44 test as to the meaning of “likely” in Regulation 2(1) of the EIA Regulations;

Failing to treat identified environmental effects as “significant” because they were judged to be of local effect only;

Wrongly treating the existence of a voluntary environmental appraisal as relevant to the question whether the proposed development would have a significant environmental effect; and

Failing to apply the Guidance published by the Commission of the EU (“the Commission”) as to what constituted significant effect.

The assertion that the Inspector acted unlawfully or irrationally in failing either to remit the negative screening direction for further consideration is supported by the assertion that the Inspector recognised in Paragraph 3 of the Appeal Decision that what was proposed would be likely to have significant environmental impacts. Finally it was alleged that neither the SoS nor the Inspector could rationally have concluded that the proposed development would have anything other than a significant impact on the SPA given that LCC had concluded that the proposed development would have such an effect and either the proposed mitigatory steps could not be taken into account when assessing whether the proposal would have significant environmental effects or the scheme was so rudimentary that it ought not to have been taken into account.

In my judgment none of these points either individually or collectively lead to the conclusion that the SoS acted unlawfully or irrationally in making the negative screening direction much less that the Inspector acted either unlawfully or irrationally in failing to remit the direction for further consideration by the SoS. My reasons for reaching these conclusions are as follows.

I reject the assertion made by reference to Paragraph 3 of the Appeal Decision that the Inspector was thereby reaching a conclusion that EIA was in the circumstances required. Paragraph 3 has to be read as a whole and in its context. The sentence that is relied on by the Claimant that I have set out above appears under the sub-heading “Other Issues” and follows on from a paragraph with the sub-heading “Main Issues”. When the whole of the paragraph is read, and when that paragraph is read in the context of the Decision as a whole, and in particular by reference to the paragraphs that appear before Paragraph 3, it is entirely clear that the Inspector was doing no more than introduce the material that he would have to consider in the following sections of the Decision for the purpose of deciding whether as a matter of planning judgment planning permission ought to be granted. I accept the submission made on behalf of the SoS therefore that the Inspector was merely identifying the existence of the environmental appraisal as part of the material that he would have to consider for the purpose of reaching a planning judgment on the merits of the proposal. I consider any other approach to be unreal.

I now turn to the challenges advanced against the Screening Direction. It is said first that the SoS’s screening exercise was flawed in law because the screener failed to apply the correct test identified in the ECJ case of Waddenzee [2005] Env L.R. 14 at Paragraph 44 of the Judgment of the Grand Chamber. That paragraph defines the meaning of “likely” for present purposes as meaning a risk of significant effect that cannot be excluded on the basis of objective information. This point is advanced by reference to the following sentence in the concluding summary of the screening checklist that led to the screening direction:

“While there are considered [sic] significant potential impacts visually in terms of the two turbines, taking account of location and number of turbines and environmental information submitted I would not consider likely impacts of such significance in wider terms as to warrant ES”

Although Mr McCracken relied on the decision of the Court of Appeal in R (Bateman) v. South Cambridgeshire DC [2011] EWCA Civ 157 as supporting his submission that a “possible” effect was to be treated as a an effect that was “likely”, I do not read the judgments as having that effect. Moore-Bick LJ gave the lead judgment. He concluded that it was not necessary to express any concluded view on the point (see Paragraph 19 of his judgment) and neither of the other Lords Justices commented on the point at all although by implication at least Jackson LJ adopted a similar approach. That being so, I do not consider that Bateman assists on the issue now under consideration. The language used by the ECJ in Waddenzee does not support the submission either. Rather it appears to be concerned with emphasising the entitlement of the decision maker to take account of “objective information” in reaching a conclusion.

However, even if the effect of Waddenseeis that “likely” is to be construed as meaning “possible” where that word is used in Regulation 2(1) of the EIA Regulations, that does not lead to the conclusion that the SoS’s decision to make a negative Direction was either wrong in law or irrational. I do not accept that it is a fair construction of what was being said in the sentence set out above that the word “potential” was intended to be equated with “possible” in the sense for which Mr McCracken contends. All that the screener was attempting to do was to say (correctly) that there were impacts that could be identified that needed to be considered for the purpose of deciding whether or not to make a negative Direction. The attempt to construe the language of an official used in a document such as that I am now considering as if it were a statute and then to apply to that language a literalist rather than a purposive construction is one that I regard as unhelpful and inappropriate. A similar approach in relation to paragraph 3 of the Appeal Decision was adopted by the Claimant and is unhelpful and inappropriate for similar reasons. Read in its context and purposively it is entirely clear at any rate to me what the official was attempting to say. The suggestion that an error of law can be discerned from this language much less a fundamental one is unsustainable. The suggestion that the Inspector acted irrationally in failing to remit by reference to these points is not arguable.

The next issue that arises at this stage is whether it was an error of law or irrational to dismiss an effect as not significant because it was judged to be of local effect only. I am not able to accept either of these propositions. As Sullivan J (as he then was) said in R (Malster) v. Ipswich Borough Council [2001] EWHC 711 (Admin) [2002] PLCR 14 at paragraphs 73 and 79:

“The 1999 Regulations are concerned to protect the environment in the public interest. Whilst this may have the effect of avoiding harm to residential amenity, the purpose of the 1999 Regulations is not to protect the amenity of individual dwelling-houses. There may be “significant” impact upon a particular dwelling or dwellings without there being likely “significant effect on the environment” for the purposes of the regulations.

…

In reality, there is a severe, but highly localised, shadowing effect upon a relatively few properties … that does not, in the context of the Regulations, amount to a likely significant effect on the environment such as to warrant an EIA”

It is true to say that in answer to a number of the questions set out in the screening checklist, the screener has identified significant but local effects. An example concerns flicker effect which is identified as having a potential effect by reference to question 6 but which is rejected as likely to result in significant effect because the impact concerned was assessed as having “…significant local effects immediate area, no wider issues …”. This is precisely the sort of analysis that was held in Malster to be one that it was appropriate for decision maker to adopt. The notion that it represents an error of law or is a judgment that was irrational is plainly unsupportable. This is so also in relation to the various other impacts that were assessed to be of local effect only. This is precisely the sort of planning judgment that the EIAD and the EIA Regulations require decision makers to take. I accept of course that there may come a point where the combination of local effects may lead to a different result when those effects are considered cumulatively rather than individually. However, the circumstances will be truly exceptional where a court would conclude that a judgment reached by reference to such a point was irrational.

I now turn to the assertion that the SoS wrongly treated the existence of a voluntary appraisal prepared on behalf of CLP as a relevant consideration. This was said to be apparent from the final paragraph of the screening checklist. As counsel for the First Defendant puts it in his skeleton submissions, all that sentence does is to set out the need for correspondence to be sent to the Planning Inspectorate. It is entirely clear when the documents referred to by the Claimant are read as a whole and in context that the determination whether EIA was required was contained in the previous paragraphs. The documents relied on by the Claimant simply do not carry the meaning alleged. I consider this point to be yet another attempt to construe a document prepared by an official in order to aid decision taking as if it was a statute and then to apply to it a literalist rather than purposive construction. This is objectionable for the reasons that I have already given but here is simply wrong as well. The point is without substance and I reject it.

Next it is alleged that the screening direction is flawed because the SoS failed to apply the EC’s Guidance which it is alleged is that “… any effect which ought to influence the decision should be regarded as significant”. The Guidance there being referred to is that contained in the Instructions for Screening set out at the start of the Checklist of criteria for evaluating the significance of environmental effects contained in “Guidance on EIA Screening” published in June 2001. In my judgment this provides no assistance in the circumstances of this case. First, there is no obligation to follow this guidance, which as far as I can discern has no legal standing. Secondly the Guidence is at best meant to assist in deciding whether an effect ought to be taken into account as part of the process. Thus the Guidance is not concerned with the issues of likely effect or the degree to which if at all local effect should be regarded as significant. Indeed, in relation to the local effect issue, question 4 implies that where an effect is of local effect only, that question will be answered “no”. Whilst no single answer is determinative, the Guidance suggests that the effect of a “no” answer will “… generally point towards … EIA not being required”. No effects have been identified by the Claimant that have not been taken into account at all that should have been. Thus the Guidance to which reference is made takes matters no further.

The final issue that arises at this stage concerns a point made at paragraph 11(iii) and (iv) of the Claimant’s skeleton. The points made in summary are that (a) it was irrational or otherwise unlawful for the SoS to have failed to conclude that the proposed development would have significant environmental effects having regard to what LCC and NE had said concerning the effect of the wind farm on pink footed geese and, therefore, on the SPA and (b) that the proposed mitigation scheme should have been ignored for the purpose of considering whether there would be a significant environmental impact (that issue being relevant only once it had been decided that an EIA was necessary) or because it was not sufficiently detailed or because it was not protected by legally binding mechanisms. It is said that these points were so fundamental that they ought to have led a rational inspector to remit the screening direction for further consideration.

The responses by the screener to question 13 of the screening checklist show that the SoS recognised the potential impact on the SPA as an issue that had to be considered in deciding what screening direction ought to be given. The reasons for concluding that the development was not likely to have a significant effect on the SPA was that following consultations with NE and RSPB an appropriate outline mitigation scheme had been identified.

Since it is clear that the SoS concluded that there would not be a significant impact because of the mitigation scheme that had been devised, it is convenient to consider first the submission that the issue of significant impact ought to have been considered without reference to the mitigatory elements of the scheme that had been proposed and about which a large measure of agreement had been reached.

It is first worth making the point that even if the impact on the SPA had not been considered to be a significant effect for screening purposes, that did not prevent the Inspector from considering it as a factor relevant to the planning judgment to be reached concerning the scheme. It is clear from the Appeal Decision that this is what the Inpector did. There was nothing to prevent planning permission being refused even though a negative screening direction had been given. This was a point that was stated expressly in the body of the screening direction and in the summary at the end of the screening checklist prepared by the screening official. It is a point that has been made on more than one occasion in the authorities.

The question whether mitigation schemes ought to be considered as part of the screening process was considered in R (Hart DC) v. SSCLG [2008] EWHC 1204 (Admin [2008] 2 P&CR 16 (Sullivan J) where it was held to be lawful to take account of a mitigation scheme when reaching a screening decision. Although the point was conceded in that case, the Judge nevertheless considered whether the concession was rightly made at paragraphs 55-75 of the Judgment specifically because the point was one of general importance – see paragraph 54 of the Judgment. The Judge concluded that the concession was rightly made. As he said, at paragraph 76 of the Judgment, “… there is no legal requirement that a screening assessment … must be carried out in the absence of any mitigation measures that form part of the plan or project. On the contrary, the competent authority is required to consider whether the project as a whole including such measures, if they are part of the project, is likely to have a significant effect on the SPA.” This approach, and in particular the emphasis on the artificiality of considering a scheme without considering the mitigation elements that were part of that scheme, reflected the approach adopted by the Court of Appeal in the earlier case of R (Catt) v. Brighton & Hove CC [2007] EWCA Civ 298 [2007] Env L.R. 32. In that case Pill LJ giving the lead judgment draws a distinction between cases such Bellway Urban Renewal Southern v. Gillespie [2003] 2 P & CR 16, where the need for extensive future site investigation was crucial to the decision whether an EIA was required, and cases where the likely effectiveness of conditions or proposed remedial measures could be predicted with confidence. In my judgment this case falls far short of the Gillespie type of case. As Pill LJ observed in Bellway, at paragraph 38 of his judgment, “.. it is not sufficient for a party to point to an uncertainty arising from the implementation of the development, or the need for a planning condition, and conclude that EIA is necessarily required. An assessment, which almost inevitably involves a degree of prediction, is required as to the effect of the particular proposal on the environment and a planning judgment made.”. In relation to the remedial measures that were part of the planning proposal, Pill LJ said at Paragraph 37 of his Judgment:

“When forming a screening opinion, the council were not required to ignore either the conditions proposed to limit the scope of the development or the conditions providing for ameliorative or remedial measures. The consequences of providing the additional seating, and other changes, could not be predicted with certainty but as Collins J noted, the Council had extensive knowledge and experience, supported by surveys, of the impact of existing football league and cup matches on the environment. On the basis of that, and the studies as to future impact, they were entitled to assess the likely impact of the additional capacity proposed in the context of the continuing ameliorative measures also proposed and form the screening opinion that they did.”

The Claimant argued that I should not adopt the approach reflected in these authorities to which I have referred above but that I should instead refer the issue to the ECJ. This approach was said to be appropriate in light of a letter from Mr Buxton, the Claimant’s solicitor, to the EC Commission dated 4^th September 2007 and a short response from an official at the Commission dated 30^th January 2008. The EC official maintained that the Commission’s view was that mitigation measures should be considered only once the requirement for an EIA had been established. I do not consider this to be a sound basis for inviting me to refer the issues I am now considering to the ECJ. At best this letter reflects the view of the Commission in January 2008. There is no authority cited for the view expressed by the Commission’s official and there is nothing in the EIAD that would appear to justify it. It ignores the logic of the reasoning set out in the authorities to which I have referred and does not appear to have been followed up with any administrative action. Given these factors, and that the domestic authorities clearly establish the approach to be adopted as a matter of English law, in my judgment the appropriate course for me to adopt is to follow the domestic authorities to which I have referred, one of which is binding upon me and with both of which I respectfully agree.

In my judgment this case is one of those that falls squarely within the parameters identified by Pill LJ as being one where the decision maker (here the SoS) was entitled to consider the effect of the proposed scheme together with the mitigation proposed for the purpose of arriving at a judgment as to whether there was a significant effect. This is plainly what the SoS did – see the question and answer referred to above. There is thus no basis for concluding that taking account of the effect of the mitigation elements of the scheme rendered the decision of the SoS either unlawful or irrational or that the Inspector acted unlawfully or irrationally in failing to remit the screening decision for further consideration by reference to this point. Whether the mitigation elements of the scheme were sufficient to overcome the objections raised by reference to the Habitats Issue to enable planning permission to be granted or granted subject to conditions was a matter for the planning judgment of the Inspector.

Finally in relation to this part of the case, it was submitted that the mitigation elements of the proposal could not rationally be treated as eliminating the likelihood of significant adverse environmental effect because of the qualifications contained in the NE letter of 20^th July 2010. I am not able to accept this submission. First, it ignores the essential effect of that letter which is that (a) the scope of the mitigation elements of the scheme had been agreed between CLP, NE and RSPB and (b) that the effect of the mitigatory elements of the scheme was that the development no longer posed a likely significant threat to the integrity of the SPA. Secondly, the first three reservations on the second page of the letter were all drafting points not points of substance as is apparent from the acknowledgement that the scope of mitigation elements had been agreed. The remaining issue was that of funding and that was provided for under the terms of the detailed plan that had been produced. All that remained was to secure compliance. NE’s suggestion was that compliance ought to be secured by s.106 agreement. If and to the extent the Claimant relied on these points as justifying an unlawfulness or irrationality attack on the SoS’s decision to give a negative screening direction that is unarguable. The scheme taken as a whole was not likely to have a significant effect. The ways and means in which the scheme was to be carried into effect depended first on whether planning permission was granted at all and if so on what terms all of which were matters of planning judgment for the Inspector. If and to the extent that it is asserted that the Inspector ought to have remitted the proposal to the Secretary of State for him to reconsider his negative screening direction by reference to the issue I am now considering that is not arguable for similar reasons. If and to the extent it is argued that the Inspector’s decision to grant permission on appeal ought to be quashed by reference to the point I am now considering that is also unarguable because whether compliance was to be secured by s.106 agreement or by conditions was a matter of planning judgment as well. Condition 12 provides a comprehensive means of ensuring that the mitigation scheme is fully detailed, and is implemented, managed and maintained throughout the life of the turbines. No development can commence until a scheme has been approved by the LPA; the turbines cannot be used unless the mitigation scheme is first implemented and if the scheme ceases to be maintained then operation of the turbines has to cease. If they remain out of operation for a year then the LPA can require their removal. In this regard, the wording of Condition 12 makes it clear that the starting point for the detailed scheme that was to be worked out was the outline scheme that had led NE and RSPB to conclude that significant risk to the SPA had been eliminated. There is no basis on which it could credibly be said that the Inspector was intending the local authority to depart from the constraints of the scheme that had been agreed and approved as eliminating any significant relevant risk. It could not credibly be contended that the LPA could in effect reconsider the impact on the environment and depart from the essential elements of the mitigation elements of the scheme. For these reasons, I consider that this case falls within the parameters for conditions identified by the Court of Appeal in Smith v. SSETR [2003] EWCA Civ 262 [2003] Env.L.R. 693

In those circumstances, I am not able to conclude that the screening Decision or the Appeal Decision is tainted by either unlawfulness or irrationality in the ways relied on. Thus I reject the suggestion that the Inspector acted either unlawfully or irrationally in refusing to remit the decision to make a negative screening direction. To the extent that it is submitted that the Inspector acted unlawfully or irrationally by granting planning permission and not dismissing the appeal by reference to the Habitats Issue or other environmental issues that were relied on, I reject that submission as well. These were classically issues for the planning judgment of the Inspector. He was entitled to weigh the issues relied on in relation to the impact on the environment against the other factors he considered and to come to the conclusion that he came to. In relation to the Habitats Issue he was entitled to conclude that permission ought to be granted subject to a condition that left the fine detail of the mitigation elements of the proposal to be agreed with the local authority. Ground 1 whether of itself or in combination with the additional ground identified by Mr McCracken in the penultimate paragraph of his submissions does not justify quashing the Appeal decision.

Ground 2

The challenge as set out in the Claim Form is that the Inspector erred in failing to conduct an Appropriate Assessment under Article 6(3) of the Habitats Directive. This refers to the need for such an assessment in relation to any plan or project “ … not directly connected with or necessary to the management of the site but likely to have a significant effect thereon …”. The word “site” in this context applies to sites such as the SPA. The sole question that arises is whether the SoS acted unlawfully in failing to carry out an Appropriate Assessment. That involves determining whether it was either unlawful or irrational to conclude that the project was not likely to have a significant adverse effect on the SPA. It is common ground that the reasoning that I have set out above in relation to the EIAD and the EIA Regulations concerning the meaning of “likely” and the approach to be taken in relation to mitigation is the same under both Directives and the applicable domestic Regulations.

The first question that has to be resolved on the Claimant’s case is whether the ameliorating scheme is mitigation or compensation. It is submitted that if it is compensation then it must be ignored for the purpose of assessing whether the proposed project is likely to have a significant effect on the SPA. This distinction appears to be derived from the provisions respectively of Article 6(4) of the Habitats Directive and Regulation 66 of the Habitats Regulations, the Regulations by which the Habitats Directive is given effect domestically. The Claimant argues that the ameliorating elements of the project are not mitigation but are compensation and therefore cannot be taken into account irrespective of the ability of the court to consider mitigation provisions by reference to the authorities already considered in relation to the EIA Regulations and EIAD.

The only material that impacts upon this distinction is contained Section 5.4 of “Managing Natura 2000 Sites” published by the European Commission. This suggests that mitigation aims to minimise or cancel negative impacts whereas compensatory measures are measures independent of the project that are intended to compensate for the effects on a habitat affected negatively by a plan or project.

There is material concerned with the ameliorating elements of the project that appears to confuse two separate aims. The first suggested that the aim was to deflect geese that would otherwise be killed from coming into contact with the wind turbines if constructed, whereas the other aim was the provision of additional feeding grounds for geese so that mortality due to collisions could be offset against other geese that in other circumstances would not survive the winter due to lack of food surviving the winter as the result of additional feeding grounds being provided so that the net effect on the SPA of mortality resulting from collisions would be neutralised. In one sense the former could be described as mitigation and the other as compensatory using the definitions referred to in Managing Natura 2000 Sites. In my judgment that would not be a correct analysis however. The Habitats Directive and Regulations are concerned with likely significant impacts on the site – that is the SPA - not the species – that is pink-footed geese. Once this is understood it becomes clear in my judgment that whichever way the ameliorating elements of the scheme are understood they are in substance mitigatory in nature applying the Managing Natura 2000 Sites definitions because the adverse effect being addressed is the possible reduction of the total number of pink-footed geese over-wintering at the SPA.

The next issue that then has to be considered is whether taking into account the mitigating elements of the scheme it was unlawful or irrational to conclude that the proposed development would not have a likely significant effect upon the SPA. In my judgment framed in that way the proposition is not arguable. As I have said already the mitigation elements were integral parts of the proposal and the Inspector was not merely entitled but bound to take them into consideration when considering the appeal – see paragraph 37 above. The issue for consideration was not what if any effect the proposals would have on pink-footed geese but rather what the effect of the proposal on the geese would have on the SPA. By the time the matter came to be considered by the Inspector the opinion of NE that was concurred with by both RSPB and LCC was that subject to the three minor points and the funding issue mentioned in the factual narrative above, and subject to the formation of a s.106 agreement, “ … the development would no longer pose a likely significant threat to the integrity of the … SPA …”. As I have said already, the reliance placed by Mr McCracken on the apparent confusion in the minds of officials considering the ameliorating elements of the scheme as to the aim of the scheme is immaterial once it is understood that what was being addressed was effect on the SPA. Either aim would achieve the same objective namely neutralising a reduction in the total numbers of geese that over wintered at the SPA successfully.

Any reliance on the negative outcome of the Appropriate Assessment carried out by LCC on behalf of the LPA was misplaced as well. As is apparent from the part of the Assessment quoted in paragraph 5 above, LCC’s conclusion was premised on “… the absence of mitigation …”. It was this element that distinguishes the position as it was at that stage from the position as it became.

Mr McCracken submitted that such an approach leads to absurdity in effect. I don’t agree. If a proposal is made that will have a likely significant effect, and in respect of which no adequate mitigatory proposals are made, then there will have to be an Appropriate Assessment. If such an assessment concludes that the proposal will adversely affect the site concerned then it will be permitted to proceed only provided that Article 6(4) and Regulation 62 are satisfied. If the proposal is not likely to have an adverse effect on a relevant site because it incorporates appropriate mitigatory measures at the screening stage, then there is no need to embark upon an Appropriate Assessment and, subject to planning permission being granted, there will be no need to satisfy Article 6(4) and Regulation 62. I do not regard this as irrational. All issues concerning enforcement of the mitigatory steps can safely be left to be covered by conditions and / or a s. 106 agreement or undertaking.

To the extent that it is contended that the Inspector acted unlawfully or irrationally in granting planning permission subject to conditions rather than dismissing the appeal before him by reference to the Habitat Issue, I reject that submission for the reasons already given in Paragraph 40 and 41 above.

Ground 3

The final ground concerns unfairness. In my judgment these points are without substance. The procedure adopted was the written representations procedure. It was followed correctly and no failure to comply with any particular procedural requirement has been identified. Rather the challenge proceeds by reference to various consequences that flowed from the use of the written representations procedure. Thus the Claimant complains that he did not have the opportunity to cross-examine. However, that is a consequence of the written representations procedure being adopted.

It is alleged that the Claimant did not have the opportunity to challenge the mitigation scheme. I do not accept that to be so. As is apparent from what I say in Paragraph 11 above, it is clear that not merely did the Claimant have the opportunity to comment on the most recent version of the Mitigation Scheme but that he took advantage of that opportunity.

There is a complaint that the Claimant did not have an opportunity to comment on the final representations made by NE. However, aside from the fact that NE was a statutory consultee, not a party, the real point is that its position never altered. The issues relevant to what NE had to say could and were all addressed by reference to the merits of the mitigation scheme.

The only other point identified by Mr McCracken was the apparent confusion as to the aim of the mitigation scheme – that is whether it was designed to prevent mortality or compensate for its effects. I have already commented on this point in relation to the other Grounds already considered. Whether or not the Claimant had the opportunity to comment on this point is immaterial because the point is itself an immaterial one. As I have said already, it is not the effect on Pink Footed geese that had to be considered but the likely effect on the integrity of the SPA. Once that is understood and it is understood that this issue concerns the total number of geese that successfully over winter at the SPA it becomes clear that this point is an immaterial consideration.

There is a complaint by the Claimant that he did not have the opportunity to comment upon the failure to require a s.106 agreement or the terms of Condition 12. However the decision in relation to the s.106 agreement and the terms of Condition 12 did not result from any submission on the part of any of the Defendants and surfaced for the first time in the decision of the Inspector. Thus there would have been no opportunity to comment on these issues by any of the parties irrespective of whether an Inquiry had been held or the written submission procedure adopted. In any event it is difficult to see on what basis the Inspector could have been persuaded to adopt a course that was different from that which he adopted which was conventional and which ensures that the detail necessary to secure the mitigatory aspects of the scheme must be agreed with the LPA before any work can commence. Thus in the absence of a challenge to the lawfulness of the decision to determine the appeal by means of written submission (and there is none) this challenge is without substance.

Finally I should mention the reference to Article 8 of the ECHR. This was not developed n the course of the oral submissions and has not been advanced by reference to any of the relevant European or domestic case law. In those circumstances it is unnecessary and undesirable that I comment further on the point.

Conclusion

This challenge is dismissed.