Prideaux, R (on the application of) v Fcc Environment UK Ltd

Article 12(1) of the Habitats Directive requires member states to establish “a system of strict protection” for a number of animal species, by prohibiting, among other things, the deliberate disturbance of these species and the deterioration or destruction of their breeding sites and resting places.

Article 16(1) permits member states to derogate from the requirements of article 12for “imperative reasons of overriding public interest”, provided that “there is no satisfactory alternative” and that “the derogation is not detrimental to the maintenance of thepopulations of the species concerned at a favourable conservation status in their natural range”.

The Habitats Directive is given effect in domestic law by the 2010 regulations. The 2010 regulations make it a criminal offence deliberately to disturb or to damage or destroy the breeding site or resting place of a European Protected Species (regulations 40 and 41). Bats and great crested newts are European Protected Species.

In the form in which they were in force when planning permission for the proposed development was granted, the 2010 regulations provided, in regulation 9(5),that in exercising any of its functions a “competent authority” – in this case the County Council – “must have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions”. Regulation 9(1) imposes a duty on Natural England to exercise its functions under the enactments relating to nature conservation “so as to secure compliance with the requirements of the Habitats Directive”. One of Natural England’s functions is the granting of licences to permit derogations from the protection afforded to European Protected Species. In this case the construction of the proposed access road required a licence from Natural England, because of the impacts on bats and great crested newts. Such licences may be granted under regulation 53, if there are “imperative reasons of overriding public interest including those of a social or economic nature”. Regulation 53(9) provides that Natural England must not grant such a licence unless it is satisfied “that there is no satisfactory alternative” and “that the action authorised will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range”.

In R. (Morge) v Hampshire County Council [2011] 1 W.L.R. 268 the Supreme Court considered the duty now provided in regulation 9(5), which was then provided in regulation 3(4) of the Conservation (Natural Habitats, etc) Regulations 1994. In that case Natural England had withdrawn its objection to the proposals. The court concluded – Lord Kerr of Tonaghmore dissenting – that the local planning authority’s committee had been entitled to conclude that licences were not required at all, and therefore that the derogation tests did not need to be considered. In paragraph 28 of his judgment Lord Brown of Eaton-under-Heywood referred to what Ward L.J. had said in the Court of Appeal (in paragraph 61 of his judgment):

“The planning committee must grant or refuse planning permission in such a way that will ‘establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range …’ If in this case the committee is satisfied that the development will not offend article 12(1)(b) or (d) it may grant permission. If satisfied that it will breach any part of article 12(1) it must then consider whether the appropriate authority, here Natural England, will permit a derogation and grant a licence under regulation 44. Natural England can only grant that licence if it concludes that (i) despite the breach of regulation 39 (and therefore of article 12) there is no satisfactory alternative; (ii) the development will not be detrimental to the maintenance of the population of bats at favourable conservation status; and (iii) the development should be permitted for imperative reasons of overriding public importance. If the planning committee conclude that Natural England will not grant a licence it must refuse planning permission. If on the other hand it is likely that it will grant the licence then the planning committee may grant conditional planning permission. If it is uncertain whether or not a licence will be granted, then it must refuse planning permission.”

Lord Brown did not agree. In paragraph 29 of his judgment he said this:

“In my judgment this goes too far and puts too great a responsibility on the planning committee whose only obligation under regulation 3(4) is, I repeat, to “have regard to the requirements of the Habitats Directive so far as [those requirements] may be affected by” their decision whether or not to grant a planning permission. Obviously, in the days when the implementation of such a permission provided a defence to the regulation 39 offence of acting contrary to article 12(1), the planning committee, before granting a permission, would have needed to be satisfied either that the development in question would not offend article 12(1) or that a derogation from that article would be permitted and a licence granted. Now, however, I cannot see why a planning permission (and, indeed, a full planning permission save only as to conditions necessary to secure any required mitigating measures) should not ordinarily be granted save only in cases where the planning committee conclude that the proposed development would both (a) be likely to offend article 12(1) and (b) be unlikely to be licensed pursuant to the derogation powers. After all, even if development permission is given, the criminal sanction against any offending (and unlicensed) activity remains available and it seems to me wrong in principle, when Natural England have the primary responsibility for ensuring compliance with the Directive, also to place a substantial burden on the planning authority in effect to police the fulfilment of Natural England’s own duty.”

Lord Brown went on to say (in paragraph 30):

“Where, as here, Natural England express themselves satisfied that a proposed development will be compliant with article 12, the planning authority are to my mind entitled to presume that that is so. The planning committee here plainly had regard to the requirements of the Directive: they knew from the officers’ decision report and addendum report … not only that Natural England had withdrawn their objection to the scheme but also that necessary measures had been planned to compensate for the loss of foraging. … I cannot agree with Lord Kerr JSC’s view … that regulation 3(4) required the committee members to consider and decide for themselves whether the development would or would not occasion such disturbance to bats as in fact and in law to constitute a violation of article 12(1)(b) of the Directive.”

Agreeing with Lord Brown, Baroness Hale of Richmond said:

“[44.] … In my view, it is quite unnecessary for [an officers’] report [to committee] such as this to spell out in detail every single one of the legal obligations which are involved in any decision. Councillors were being advised to consider whether the proposed development would have an adverse effect on species or habitats protected by the 1994 Regulations. That in my view is enough to demonstrate that they “had regard” to the requirements of the Habitats Directive for the purpose of regulation 3(4). That is all they have to do in this context, whereas regulation 48(1)(a) imposes a more specific obligation to make an “appropriate assessment” if a proposal is likely to have an effect upon a European site. …

[45.] Furthermore, the United Kingdom has chosen to implement article 12 of the Directive by creating criminal offences. It is not the function of the planning authority to police those offences. Matters would, as Lord Brown JSC points out, have been different if the grant of planning permission were an automatic defence. But it is no longer. And it is the function of Natural England to enforce the Directive by prosecuting these criminal offences (or granting licences to derogate from the requirements of the Directive). The planning authority were entitled to draw the conclusion that, having been initially concerned but having withdrawn their objection, Natural England were content that the requirements of the regulations, and thus the Directive, were being complied with. Indeed, it seems to me that, if any complaint were to be made on this score, it should have been addressed to Natural England rather than to the planning authority. They were the people to assess the meaning of the updated bat survey and whether it did indeed meet the requirements of the Directive. The planning authority could perhaps have reached a different conclusion from Natural England but they were not required to make their own independent assessment.”

Lord Mance said (at paragraph 55):

“With regard to the updated bat survey, there is no reason to believe that Natural England did not, when evaluating this, understand both the legal requirements and their general role and responsibilities at the stage at which they were approached by the council. … The important point is … that Natural England was well placed to evaluate this survey, and having done so, gave the advice they did. … .”

In his dissenting judgment Lord Kerr said this (in paragraph 82):

“It may well be that, if Natural England had unambiguously expressed the view that the proposal would not involve any breach of the Habitats Directive and the committee had been informed of that, it would not have been necessary for the committee members to go behind that view. But that had not happened. It was simply not possible for the committee to properly conclude that Natural England had said that the proposal would not be in breach of the Habitats Directive in relation to bats. Absent such a statement, they were bound to make that judgment for themselves and to consider whether, on the available evidence the exercise of their functions would have an effect on the requirements of the Directive. I am afraid I am driven to the conclusion that they plainly did not do so.”

One of the cases cited in argument in Morge but not referred to in any of the judgments was R. (Woolley) v Cheshire East Borough Council [2010] Env. L.R. 5. In that case H.H.J. Waksman Q.C., sitting as a deputy judge of the High Court, had considered the role of a planning authority when considering whether the derogation tests could be met, as an aspect of its duty to have regard to the Habitats Directive. He said (in paragraph 27 of his judgment):

“This exercise is in no way a substitute for the licence application which will follow if permission is given. But it means that if it is clear or perhaps very likely that the requirements of the directive cannot be met because there is a satisfactory alternative or because there are no conceivable “other imperative reasons of overriding public interest” then the authority should act upon that, and refuse permission. On the other hand if it seems that the requirements are likely to be met, then the authority will have discharged its duty to have regard to the requirements and there would be no impediment to planning permission on that ground. If it is unclear to the authority whether the requirements will be met it will just have to take a view whether in all the circumstances it should affect the grant or not. But the point is that it is only by engaging in this kind of way that the authority can be said to have any meaningful regard for the directive.”

The two sides in this claim disagreed about the status of those observations in the light of the Supreme Court’s decision in Morge. For the claimant it was argued that they remained good law. For the City Council and FCC it was submitted that they were not.

InElliott v Secretary of State for Communities and Local Government and others [2013] Env. L.R. 5 Natural England had not objected to the proposals but had not actually said it was satisfied that they complied with article 12. Keith J. held (in paragraph 52 of his judgment) that an inspector, when having regard to the requirements of the Habitats Directive, had been entitled to take account of the fact that Natural England had not objected:

“… Of course, Natural England may not in terms have expressed itself satisfied that the proposals in the Masterplan would comply with Art. 12 of the Habitats Directive. Natural England was only not objecting to the proposals – presumably on the basis that the impact on the foraging and roosting habitats of bats would be relatively modest. But the upshot was that when the Secretary of State was obliged to have regard to the requirements of the Habitats Directive to the extent that they may be affected by his planning functions under the 1990 Act, he was entitled to have regard to Natural England’s views about the impact of the proposals on the foraging and roosting habitats of bats, and to grant planning permission unless it was likely that (a) a licence under reg. 53 would be required and (b) when it was applied for, it would be refused.”

Keith J. went on to say (in paragraph 53):

“Judgment in Morge was handed down on 9 January 2011, a few weeks after the Secretary of State made the decision which is being challenged in this case. At that time, the test was the more onerous one adopted by the Court of Appeal in Morge … and [Woolley], … namely that if the planning committee was uncertain whether or not a licence under reg.53 would be granted, planning permission should be refused. So if the Secretary of State took the view that it was likely that a licence under reg.53 would be granted if it was sought, all the more so for him to have thought that it was unlikely that it would not be granted if it was sought.”

I understand that an appeal against Keith J.’s decision in Elliott was dismissed by the Court of Appeal on 23 April 2013.

The European Commission’s “Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC”, published in February 2007,gives advice (in paragraphs (34) to (42) of part III) on the assessment of alternatives under article 16. It is for the competent national authorities to evaluate alternatives, but this discretionary power is “subject to several constraints” (paragraph (35)). The analysis can be considered as having three parts: first, “What is the problem or specific situation that needs to be addressed?”; second, “Are there any other solutions?”; and third, “If so, will these resolve the problem or specific situation for which the derogation is sought?” (paragraph 36). Paragraph 37 says this:

“The analysis of whether “there is no other satisfactory alternative” presumes that a specific problem or situation exists and needs to be tackled. The competent national authorities are called upon to solve this problem or situation by choosing, among the possible alternatives, the most appropriate that will ensure the best protection of the species while solving the problem/situation. To ensure the best protection of species, these alternatives must be assessed with regard to the prohibitions listed in Article 12. They could involve alternative locations (or routes), different development scales or designs, or alternative activities, processes or methods.”

Paragraph 38 of the guidance document says that “recourse to Article 16 derogations must be a last resort”. Paragraph 39 says that “[the] same strict approach applies to the interpretation of the term “satisfactory””. Given the exceptional nature of the derogation regime and the duty of Member States under Article 10 of the EC Treaty to facilitate the achievement of the tasks of the Community, a derogation “would only be justified on the basis of an objective demonstration that there is no other satisfactory solution”. As the Advocate General had said in Case C-10/96, this “may be interpreted as meaning a solution which resolves the particular problem facing the national authorities, and which at the same time respects as far as possible the prohibitions laid down in the Directive; a derogation may only be allowed where no other solution which does not involve setting aside these prohibitions can be adopted.”Paragraph 40 acknowledges, however, that “the factors for evaluating the existence of another satisfactory solution” are “a matter for the national courts”. It adds that “[the] appraisal of whether an alternative is satisfactory or not, in a given situation, must be founded on objectively verifiable factors, such as scientific and technical considerations.”

Paragraph 41 emphasizes the importance of assessing alternatives:

“Evidently, the requirement to consider seriously other alternatives is of primary importance. The discretionary power of Member States is limited, and where another solution exists, any arguments that it is not “satisfactory” will need to be convincing. Moreover, it should be stressed that another solution cannot be deemed unsatisfactory merely because it would cause greater inconvenience to or compel a change in behaviour by the beneficiaries of the derogation.”

On this issue Mr Ian Dove QC for the claimant submitted:

The submissions made on this issue by Mr David Elvin Q.C. for the County Council and by Mr James Maurici for the FCC can be summarized together. They submitted:

I cannot accept Mr Dove’s argument on this issue. In my view the submissions made by Mr Elvin and Mr Maurici are correct.

I think Mr Dove exaggerated the County Council’s task, as a planning decision-maker, when dealing with the consequences of the proposed development for European Protected Species. It is the function of Natural England to enforce compliance with the Habitats Directive, by prosecuting those who commit offences contrary to its provisions. Under regulation 9(5) of the 2010 regulations, the County Council’s duty was to have regard to the requirements of the Habitats Directive so far as those requirements might be affected by its decision whether to grant planning permission.

The lawfulness of what the County Council did in this case is not to be tested by imposing upon it a duty that was not its own, and a role in exploring alternatives that it might only have had to perform if the Supreme Court’s decision in Morge could be put to one side and the Court of Appeal’s restored.

As the final decision in Morge makes clear, regulation 9(5) does not require a planning authority to carry out the assessment that Natural England has to make when deciding whether there would be a breach of article 12 of the Habitats Directive or whether a derogation from that provision should be permitted and a licence granted. If a proposed development is found acceptable when judged on its planning merits, planning permission for it should normally be given unless in the planning authority’s view the proposed development would be likely to offend article 12(1) and unlikely to be licensed under the derogation powers (see paragraph 29 of Lord Brown’s judgment in Morge).

The majority of the Supreme Court rejected the kind of assessment favoured by the Court of Appeal, which would require a more penetrating enquiry into the prospects of a licence being granted. In Lord Brown’s view, with which Lords Walker and Mance and Baroness Hale all agreed, a planning authority is not expected to supervise the performance by Natural England of its “primary responsibility for ensuring compliance with the Directive”, or to take that responsibility upon itself. In the opinion of Lord Brown (in paragraph 30) and Baroness Hale (in paragraph 45) the authority was entitled to conclude that Natural England, having withdrawn its initial objection to the proposal, was satisfied that the requirements of the Habitats Directive were being met.

None of the judgments in the Supreme Court in Morge expresslydisapproved the approach suggested by H.H.J. Waksman Q.C. in paragraph 27 of his judgment in Woolley. Indeed, none of the judgments referred to Woolley at all, although it was cited in argument. Mr Dove submitted that what the judge had said in that case was still good law. Mr Elvin and Mr Maurici argued that it was not, because it was, in effect, what had been said by the Court of Appeal in Morge. I think they were right. Woolley cannot be read now as support for an approach more exacting than was finally sanctioned in Morge. If the majority of the Supreme Court in Morge had wanted to endorse the approach suggested by the judge in Woolley and to adopt what he had said as a gloss on the words of Lord Brown (in paragraph 29) and Baroness Hale (inparagraphs 44 and 45)I think they would have said so. They did not. The whole tenor of their reasoning is less demanding of planning authorities than the observations of H.H.J. Waksman Q.C. in Woolley. In my view, the law is now to be found in Morge, not in Morge plus Woolley.

I think the County Council discharged its duty under regulation 9(5) in this case with no less rigour than was required to comply with the approach indicated by the Supreme Court in Morge. It did at least as much as it had to do to satisfy itself that the necessary derogations were not unlikely to be licensed. Indeed, I think it did enough to satisfy even the more burdensome remit for planning authorities envisaged by the Court of Appeal in Morge, and by the judge in Woolley.

In the documents FCC and SLR submitted to the County Council and Natural England the likely effects of the development on European Protected Species were dealt with in depth.Ample detail was provided in the environmental statement. More was produced when it was asked for. The proposals were modified, the strategies for mitigation improved. The County Council’sregulation 19 requestrequired, among other things, updated surveys of bats and great crested newts.The regulation 19 submission included a large amount of material on European Protected Species, and the likely effects upon them if the proposed access road was constructed and used. By the time that submission was made the access road had been redesigned. A substantial proportion of the existing scrub habitat was now going to be retained(paragraph 2.3.2 of the October 2011 ecological report). Further surveys of bats and great crested newts had been undertaken(sections 6 and 8 of the October 2011 ecological report).It was acknowledged that derogation licences would be required for works affecting bats and great crested newts (paragraphs 6.4 and 8.2, respectively). In Annex Ato the October 2011 ecological report the relevant statutory tests were discussed in detail. The Ecological Management Plan, which itself went through several revisions, set out the mitigation proposals.

Alternative routes for the access road were also considered in the EIA. In section 8 of the environmental statement it was explained that the arrangements for access had been under consideration for a long time. The chosen option – Option 4, the Akeman Street railway route – was the most expensive. But it was the only one that would completely remove traffic from local roads (paragraphs 8.10 to 8.12). Alternatives for the access road were assessed in the supplementary section 7A of the environmental statement in the regulation 19 submission. The aim to relieve local villages from waste vehicles was emphasized (paragraph 7A.46). The preferred route was judged to perform well against the other options (paragraph 7A.47). The alternative shown in figure 7A-1 had significant disadvantages, including its likely impact on a Site of Special Scientific Interest (paragraphs 7A.57 to 7A.65).

When the application came before the County Council’s committee the officers provided the members with a thorough analysis of the matters relevant to their consideration of European Protected Species.

Having referred to the statutory duty to have regard to the requirements of the Habitats Directive (in paragraph 253 of their report), the officers went on to consider the specific requirements relating to European Protected Species, and then to cover the likely impacts on those species (in paragraphs 258 to 268). They identified the three tests in the licensing regime (paragraph 259). Mr Dove acknowledged that they did this accurately. It cannot be suggested, therefore, that when making its decision on the application for planning permission the committee was unaware of the relevant requirements. It was clearly awareof them and had regard to them. So the issue narrows to whether the consideration it gave them was adequate. I believe it was.

The officers provided the committee with their views on the application of the derogation tests. The only contentious part of this advice is the passage in which the officers dealt with the alternatives for the proposed access road.

In my view the advice the officers gave on those alternatives, which the members plainly accepted, was sound and sufficient.

The officers referred to the several options in paragraphs 263 to 265 of their report. The factual accuracy of what they said has not been questioned. Nor has it been said that their views on the merits and disadvantages of the alternatives were irrational. That submission would have been untenable.

The officers’ conclusions, in paragraph 265 of their report, were clear: first, that a new access road to the site was “essential” if the impact of heavy vehicles using local roads was to be removed; secondly, that without this new access road the additional impact of heavy vehicles serving the proposed energy from waste facility would be “unacceptable”; thirdly, that although the impact on European Protected Species might prove to be less if an alternative access route were brought forward, there was enough evidence that “other impacts would be considerable and hard to overcome”; fourthly, that on balance there was “no satisfactory alternative access route that would be less harmful … so that there is no satisfactory alternative”; and fifthly, therefore, that the second test for derogation was met. These conclusions were, I think, reasonable and realistic. The members were being told that no acceptable alternative to the proposed route for the access road had been identified. Regardless of whether there would be lesser impacts on protected species, other objections to the alternatives considered would be “hard to overcome”. The traffic they would put on to local roads would be “unacceptable”. None of them was “satisfactory”.

I do not see any force in Mr Dove’s complaints about the officers’ advice. The officers’ approach was, I believe, pragmatic and right.

To say, as they did, that one could not be sure whether any of the alternatives would have less effect on European Protected Species than the access road proposed was not misleading. It was correct. No detailed surveys, which might have shown a lesser impact, had been done. But, as Mr Elvin submitted, this would only have mattered if there had not been clear objections to the alternatives on other grounds. There were such objections. None of the alternatives was acceptable. It was not necessary to compare their potential impacts, if any, on European Protected Species. Whatever the result of that exercise might have been, none of the alternatives was going to “resolve the problem or specific situation for which the derogation [was to be] sought” – as it is put in paragraph 36 of the European Commission’s guidance document. The officers did not refer to the guidance document in their report. But their advice was not inconsistent with it.

I do not accept that the officers needed to spell out for the members all the considerations that had gone into the proposed alignment of the access road, and why the demolitions at Upper Greatmoor Farm were necessary. As the officers understood, the aim of minimizing the ecological impacts of the development had influenced the design of the road as the proposals evolved. They could have explained this is detail in their report. But they were not obliged to do so.

As Mr Elvin submitted, it is not the law that a derogation may only be licensed if there is no alternative. The relevant proviso in article 16(1) of the Habitats Directive is that there is no “satisfactory alternative”. Mr Elvin contrasted the provisions of article 16(1) with the stringent provisions in article 6(3) and (4) governing the protection of habitats in Special Areas of Conservation and Special Protection Areas, and in particular the language of article 6(4), which refers simply to the absence of “alternative solutions”.

Mr Dove relied heavily on the advice given in the European Commission’s guidance document, and especially the point made in paragraph 38 of it – that derogation “must be a last resort”. But the guidance is not the law. The law is to be found in the relevant provisions of the Habitats Directive and the 2010 regulations, and in any jurisprudence that sheds light on their meaning. Paragraph 37 of the guidance enjoins the competent national authorities to select from the “possible alternatives” the one that will ensure the best protection of the species “while solving the problem …”. But this does not require a comparative assessment of the possible effects of each suggested alternative on the European Protected Species. Article 16 of the Habitats Directive does not provide that a licence must be refused if an alternative emerges with no foreseeable impact on European Protected Species, or an impact less harmful than that of the project in hand. And I do not accept the suggestion that an alternative must be regarded as satisfactory – or can only be satisfactory – when that is so. As Mr Maurici pointed out, this could have some very odd results. For example, it might be seen as justifying the destruction of a Site of Special Scientific Interest where no species protected under the Habitats Directive were present, even if the impacts of the proposed development on European Protected Species were going to be modest and easily overcome.

As is clear from the European Commission’s guidance, other considerations other than the effects of European Protected Species can and will come into play. Physical, planning and timing constraints are germane tothe question. Any or all of these may prove decisive. To be satisfactory an alternative has to be a real option, not merely a theoretical one. When planning permission for it would likely be refused because, for instance, it would strain the capacity of local roads, or disturb people in their homes, or mar the setting of a listed building, or harm flora or fauna important in a Site of Special Scientific Interest, it may well be reasonable to dismiss it as a “satisfactory alternative”. Without the planning permission it would require a hypothetical option of that kind would not be a real alternative; it could not meet the identified need.

Judging what is, or may be, a satisfactory alternative in a particular case requires a focus on what is sought to be achieved through the derogation, and on the likely effects of the works on the species in question. As Mr Elvin submitted, in the absence of European case law on the application of the derogation tests under the Habitats Directive, there is a useful parallel in the cases in which similar provisions in Directive 79/409/EEC (the Wild Birds Directive) were considered by the European Court of Justice. For example, in Case C-344/03 Commission v Finland [2005] ECR I–11033), which concerned derogations to allow the hunting seasons for various species of duck to be extended, the court held (at paragraph 44) that for one species – the long-tailed duck – there was “no other satisfactory solution”. This bird could not be hunted in the autumn hunting season. Hunting other species of duck could not be considered an “other satisfactory solution” It would render the derogation provisions “nugatory” (see paragraph 43). This accords with the general principle that an alternative will not be “satisfactory” if it fails to achieve the relevant aim.

In the light of the advice they were given, and in the absence of any objection from Natural England, the County Council’s committee was in my view entitled to conclude, if not bound to conclude, that the derogation tests were at least likely to be met.

As the committee was well aware, by the time FCC’s proposals came before it for a decision, the effects of the development on ecological interests, including European Protected Species,had been discussed over a long period, both with the County Council’s officers and with Natural England.It is clear that the committee gave considerable weight to the conclusions reached by Natural England. This is hardly surprising. It is exactly what one would expect. Natural England is the “appropriate nature conservation body” under the regulations. Its views on issues relating to nature conservation deserve great weight. An authority may sensibly rely on those views. It is not bound to agree with them, but it would need cogent reasons for departing from them (see, for example, the judgment of Sullivan J., as he then was, in R. (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) (2008) 2 P. & C.R. 16, at paragraph 49), and the judgment of Owen J. in R. (Akester) v Department for the Environment, Food and Rural Affairs [2010] Env. L.R. 33, at paragraph 112).

It was not necessary for Natural England to have said that the derogations were going to be licensed, or were likely to be. Like the authority in Morge, the County Council was entitled to assume that Natural England was satisfied that the requirements of the Habitats Directive and the regulations were being complied with (see paragraphs 6, 8, 30 of Lord Brown’s judgment, and paragraphs 37 to 40 and 44 and 45 of Baroness Hale’s). The facts in Elliott were also similar (see paragraph 52 of Keith J.’s judgment).

Natural England’s position on the European Protected Species potentially affected by the development was not obscure. When it objected to the proposals, in March 2011, it did not do so on any grounds relating to bats or great crested newts. It knew those species were present in areas likely to be affected by the development. It asked for further survey work to be done, to establish whether bats were present on or near the development site. Those surveys were done, and their results were seen by Natural England.

I have referred to the relevant correspondence between Natural England, SLR and the County Council in late 2011 and early 2012; I need not repeat the detail now. It is clear from the correspondence that Natural England had no misgivings about the likely effects of the development on European Protected Species and the ways in which those effects were going to be mitigated, with some benefit as a result. There was never the slightest hint of derogation licences being refused in due course. There was nothing to indicate that Natural England was likely to take a different view on any of the derogation tests – including the test of “no satisfactory alternative” – from that expressed by the officers in their advice to the members. In the circumstances the County Council could properly conclude that licences were not likely to be refused. Indeed, any other conclusion would have defied the facts.

As was held in Morge and Elliott, a similar conclusion could be drawn in a case where Natural England had at first resisted proposals for development on grounds relating to European Protected Species, only later to change its stance.There is no reason in my view why this should not be so in a case where Natural England has never opposed the development on such grounds.I do not see a material difference between this case and Morge on the basis suggested by Mr Dove – that in Morge the critical question was not whether a derogation licence was unlikely to be issued but whether the proposals complied with article 12. The crucial point in my view is that here, as in Morge, Natural England’s position was absolutely plain from what it had said and done – and from what it had not said and not done – during its involvement in the planning process. In that process it could be expected to act in the public interest, just as it could in its own process when deciding whether derogations ought to be licensed.

The subsequent quashing of the derogation licences in a consent order does not negate the analysis on which the County Council’s officers’ advice and its committee’s decision were based. Natural England’s decision to issue those licences and the order of the court to quash them both came after planning permission had been granted. Neither of those two events had any influence on the County Council’s decision-making on the planning application. The same applies to the further licence granted by Natural England on 12 March 2013. As I said at the hearing, the fact that this new licence has been issued, and the possibility that it too may be challenged in a claim for judicial review, do not affect my conclusion on this issue at all.

If I had come to a different conclusion on this part of the claim, I think there would have been some force in the submission that it is now academic, at least so far as it relates to the impact on bats. The works necessary to exclude bats from the buildings at Upper Greatmoor Farm have already been carried out. Any further works to implement the planning permission would not disturb bats. I would have had to bear this in mind in exercising my discretion to grant or withhold relief.

For the reasons I have given, however, this ground of the claim must fail.

It is trite that a claim for judicial review is not an opportunity to contest the planning merits of a planning authority’s decision. Questions of planning judgment and weight are not for the court but for the planning decision-maker (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780).In Newsmith Stainless Ltd v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, Sullivan J., as he then was, observed (in paragraph 7 of his judgment) that “where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle … to surmount”, more difficult still in most planning cases because the decision-maker is not simply deciding questions of fact, but reaching a series of planning judgments when there will usually be “a fairly broad range of possible views, none of which can be categorised as unreasonable.” Those principles may be seen at work in many cases like this. They are applied, for example, in cases where a planning judgment has had to be made under a particular provision of policy.

In R. Buglifev Thurrock Thames Gateway Corporation [2009] 2 P. & C.R. 8 a claim for judicial review was made on the basis that the development corporation had failed to apply the advice in paragraph 1(vi) of PPS9 “Biodiversity and Geological Conservation” – which was in similar terms to that now given in paragraph 118 of the NPPF. It was submitted that the duty to look for alternative sites had been triggered and that only if no such sites were available could the possibility of mitigation on the appeal site arise. The grant of planning permission on the basis that significant harm could be adequately mitigated, it was said, did not accord with the advice in PPS9. The claim failed, on both the first instance and on appeal. In his judgment, with which Rix L.J. and Arden L.J. agreed, Pill L.J. said this (at paragraph 49):

“There was no sentence-by-sentence analysis of PPS9. However, its overall tenor was not ignored, the adverse effects being carefully analysed. The respondents were entitled to conclude that the harm was not, in the terms of the circular, significant. They were entitled to take the mitigation proposed, and the assessment of its effect, into account when making their decision. They were entitled to give considerable weight to the representations of Natural England, the expert statutory consultees. Indeed, it would have been surprising if, having regard to the public interests involved, they did not give them such weight. The planning conditions imposed and the detailed section 106 agreement were, as Natural England accepted, a valuable safeguard. Natural England withdrew its objection to the planning application.”

The NPPF was published by the Government in March 2012. Inparagraph 118 it states:

“When determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:

•

if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then permission should be refused;

•

proposed development on land within or outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest … should not normally be permitted. Where an adverse effect on the site’s notified special interest features is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of Sites of Special Scientific Interest;

…

•

the following wildlife sites should be given the same protection as European sites:

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potential Special Protection Areas and possible Special Areas of Conservation;

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listed or proposed Ramsar sites; and

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sites identified, or required, as compensatory measures for adverse effects on European sites, potential Special Protection Areas, possible Special Areas of Conservation, and listed or proposed Ramsar sites.”

On this issue Mr Dove submitted:

Mr Elvin and Mr Maurici submitted:

I cannot accept the submissions made by Mr Dove on this issue. Again, in my view, those of Mr Elvin and Mr Maurici are well founded.

It is not the role of the court to test the ecological and planning judgments made in the course of the County Council’s decision-making process. Assessing the nature, extent and acceptability of the effects that a development will have on the environment is always – apart from the limited scope for review on public law grounds – exclusively a task for the planning decision-maker.

I do not think the ecological analysis presented to the County Council by FCC was flawed in a way that could vitiate the County Council’s decision to grant planning permission. Mr Dove argued that the analysis was obviously wrong. But I cannot see that it was. Nor, in my view, was it unreasonable or irrationalfor the County Council to rely upon that analysis. On the contrary, I think it might have been unreasonable not to do so.

Mr Dove submitted that the County Council could not reasonably find the mitigation proposals for the black hairstreak butterfly satisfactory, for two main reasons: first, because the proposals did not reflect the fact that the black hairstreak is a sedentary species, which does not readily adapt to new habitat; and secondly, because there is likely to be a delay in the new habitat becoming suitable. A formidable difficulty for this submission is that Natural England, having very carefully considered the proposed mitigation, withdrew its objection, and the County Council’s expert advice was also that the mitigation would be effective. The claimant himself raised concerns about the mitigation, but these were rejected by Natural England in its letter of 13 March 2012.

It is important, I think, to view the relevant ecological material as a whole, as it was after a process of consultation, the submission of further information, the refinement of FCC’s proposals, the evolution of the intended measures for avoiding harmful impacts on the species potentially affected by the development, SLR’s correspondence and dialogue with Natural England, and the withdrawal of Natural England’s objection.For example, paragraph 11.135of the environmental statement, which identified possible harmful effects on butterflies, should not be read in isolation, as if it were the final word on this matter. It was not. Further work was done. In the October 2011 ecological report it was concluded that there would bea “direct negative impact” on hairstreak butterflies in the absence of mitigation. To paraphrase: the losses would not be great and the proposals would not prevent the access road acting as a link between the Sites of Special Scientific Interest. The provision of new habitat to compensate for the losses would reduce the impact and, over time, lead to new connections being formed. Although there would be some harm to the butterfly species in the short term this would not be significant. The further information on the proposed mitigation measures provided by FCC enabled Natural England to withdraw its objection, which it did on 6 February 2012.The documents and correspondence through which this history can be traced were all available to the County Council’s committee when eventually it met to consider the planning application in April 2012.

The issues relating to biodiversity and nature conservation were discussed in the officers’ report. They were also debated by the members, as the committee minutes show. The officers’ reporting of the issues, including those relating to butterflies and the Sites of Special Scientific Interest, was not perfunctory. It was in my view conscientious, even-handed and thorough. Its coverage of the issues as they stood when the decision on FCC’s proposals came to be made cannot be faulted.The gist of the relevant objections, including those of Butterfly Conservation and Buglife, was reported and commented upon.The members knew the County Council’s ecological adviser was content that the proposed mitigation would be effective.And they were told that Natural England was no longer objecting to the proposals at the meeting on 14 February 2012, andagain in the updating report for the meetings in April.

Standing back from all this, one can see that the conclusions of the County Council’s committee on the ecological issues were in the circumstances perfectly rational, however much the claimant and others might wish to dispute them. They had a basis in objective evidence and in expert assessment and judgment. They were supported both by the County Council’s own ecological adviser and by Natural England.Buglife had doubted the efficacy of the proposed translocation of blackthorn. But it was for the County Council’s members to come to their own conclusions on all the material they had. It was not perverse for them to conclude – as Natural England and those advising them had done – that deleterious effects on the assemblage of butterflies on and around the site had been avoided, though some damage was likely in the short to medium term and only later would the “compensation” habitat yield its benefits.This is the kind of judgment that planning committees are used to making. It will not be defeated in a claim for judicial review by disagreement alone, even if such disagreement has expert opinion behind it.

In the end, despite Mr Dove’s great presentational skill, this part of the claim is really an attack on the expert judgment of Natural England and the corresponding views of the County Council’s own ecological expert, the planning officers, and, ultimately, the members as well. It does not convince me that the County Council committed any error of law.

As I have already said, the County Council was entitled to give significant weight to the views of Natural England. For a long time Natural England maintained an objection. It did so because it wanted to be satisfied that the Sites of Special Scientific Interest and the species of particular importance within them would be sufficiently protected by the intended mitigation for invertebrates, especially the black hairstreak and the brown hairstreak butterflies.In the end, in the light of all the information SLR had produced, Natural England was satisfied. By early February 2012 it could no longer see any reason to resist the proposals. If at that stage it had been uneasy about the mitigation proposed it would have persisted in its objection.

SLR was always consciousof the idiosyncrasies of the black hairstreak. One can see this, for example, in 11.135 of the environmental statement, where it was acknowledged that “alternative habitats may not be accessible”. In the additional information provided in response to the regulation 19 request and in later correspondence, attention was given to the detailed design of habitat for the black hairstreak. SLR’s letter of 2 February 2012 explained the measures proposed for the creation of early successional habitat, of mixed ages, and for the management of this habitat.

In its letter of 6 February 2012, withdrawing its objection, Natural England made clear what conditions it expected to see imposed on the planning permission if the development was approved. One of these would prevent development on the disused railway line “until all relevant mitigation measures, as agreed, have been carried out to a satisfactory standard to ensure that these measures will be successful”. This did not, in my view, betray a lingering uncertainty about the effectiveness of the proposed mitigation. Rather, it envisaged that the relevant mitigation measures would have been carried out to a satisfactory standard before development went ahead on this part of the site, to ensure that the mitigation would be successful.

The conditions imposed on the planning permission translated Natural England’s requirements into enforceable planning controls. Condition 4 set out a series of detailed requirements for the habitat mitigation encompassed in the Ecological Management Plan. Condition 6 required the Greatmoor Biodiversity Partnership, on which Natural England would be represented, to work “in accordance with the proposals contained in the Ecological Management Plan”. The conditions provide a comprehensive and flexible system for regulating the mitigation strategy and the ecological management of the site. They do not leave the mitigation unreasonably at large or ill-defined. They comprise the essential requirements of Natural England in its letter of 6 February 2012.

The July 2012 version of the Ecological Management Plan emerged after consultation with, among others, Natural England.It set out a detailed strategy for ecological mitigation and enhancement, and a framework for ecological management. The mitigation strategy had been maturing over the months during which Natural England had maintained its objection. It was designed to facilitate the breeding and dispersal of the black hairstreak, which Natural England had described in its letter of 15 December 2011 as a “rare and sedentary butterfly”. It allowed for what SLR had recognized in their letter of 19 December 2011 to the County Council as the “time-lag” between the loss of habitats and the new habitat reaching a suitable condition for the “target species”, including the black hairstreak. It was modelled on the multiplier approach recommended by DEFRA for dealing with this “compensation risk” in its technical paper of July 2011.

Natural England was evidently convinced that this approach would work and could be incorporated into a planning permission by conditions. This was, in my view, an entirely reasonable conclusion for Natural England to reach, and for the County Council to share.

Seen against that background, the submissions Mr Dove sought to base on the advice in paragraph 118 of the NPPF are clearly without merit.

As Mr Elvin submitted, the true question here is not whether the County Council misunderstood what the policy says, but whether it applied the substance of the policy wrongly on the facts. One comes back then to the familiar principle, reiterated by Lord Reed in Tesco v Dundee City Council [2012] P.T.S.R. 983 (at paragraph 19) that many provisions of development plans – and likewise many provisions of national planning policy – are “framed in language whose application to a given set of facts requires the exercise of judgment” and that “[such] matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse ...”. Applying that principle to the facts of this case, I cannot see any reason to set the County Council’s decision aside.

In my view there is no significant difference between the advice in paragraph 118 of the NPPF – at least so far as it is relevant in this case – and the equivalent, preceding advice in PPS9, which the Court of Appeal had to look at in Buglife.

The officers had prepared their report for the February 2012 meeting before the NPPF was published. But they did refer, in paragraph 252 of their report, to Key Principle (vi) of PPS9, which was similar to the advice now given in paragraph 118 of the NPPF. They acknowledged the principles of avoidance, mitigation and compensation in national policy. Their advice was in my view consistent with the guidance in paragraph 118 of the NPPF.As they noted in paragraph 251 of their report, the concept of “significant adverse effect” – which I think is the same thing as “significant harm” – was to be seen in relevant provisions of the development plan. In paragraph 256 they reminded the members of the Government’s advice that “where there is likely to be an adverse impact on SSSIs, … planning permission should be refused …”.In paragraph 257 they noted Natural England’s remaining concerns and the prospect of those concerns being overcome. They acknowledged in paragraph 271 that new habitats were going to created.And in paragraph 272 they brought the members to these questions: whether there would be “significant and lasting adverse impact on the nationally protected species or their habitats”, whether “in the longer term there would be a significant enhancement to the biodiversity value of the application site”, and whether there would be a conflict with development plan policies relating to Sites of Special Scientific Interest. If Natural England were to withdraw its objection – which it did – the officers’ advice was that there would be no conflict with those policies. When they came to write their supplementary report, by which time Natural England’s objection had gone, the officers were able to say, in paragraph 66, that it was highly unlikely that an objection on grounds relating to biodiversity could be sustained.At the committee meeting on 20 April 2012, when ecological matters were being debated, the committee was guided on how it should apply the advice in paragraph 118 of the NPPF.

Looking at the whole of this process, I am in no doubt that the conclusions reached by the County Council on the ecological issues it had to grapple with were entirely reasonable, and congruent with government policy in the NPPF. As in Buglife, the policy was, in substance, correctly applied. And the proposals did not clash with it.

The first principle in paragraph 118 of the NPPF was not offended.

The County Council’s committee could properly conclude, in the light of the officers’ advice and bearing in mind that Natural England had withdrawn its objection, that the proposed development would not cause any “significant harm” to wildlife, and that it was compatiblewith the aim of conserving and enhancing biodiversity. This clearly was the committee’s conclusion.

Alternatives to the proposed access road were considered. Each of them would result in some kind of planning harm. The officers’ conclusion, therefore, which the members accepted, was that there was no satisfactory alternative to the development proposed. That was made clear in paragraph 265 of the officers’ report.Again, this was quintessentially a matter of judgment for the members.It was a judgment made in the specific context of the derogation tests for European Protected Species. But it was also relevant more generally to the effects on biodiversity, including the impact on the disused railway line as a link in a network of habitats for butterflies and other invertebrates.

Even if this had beena case in which “significant harm” to ecological interests could be “avoided” by locating the development on an alternative site with less harmful impacts, it would still have been open to the County Council to conclude, as Natural England had, that any such harm could be “adequately mitigated”, and therefore that the first principle in paragraph 118 of the NPPF was met. The policy invites the decision-maker to consider the mitigation proposed. It is not surprising that the policy is expressed in this way. As Mr Elvin pointed out, mitigation measures can be taken into account when a competent authority is considering whether harm will be caused to habitats enjoying a very high level of protection, such as Special Protection Areas (see paragraph 76 of Sullivan J.’s judgment in Hart District Council). In applying the policy in paragraph 118 of the NPPF it would have been both artificial and wrong for the County Council to divorce the proposed mitigation measures from the development proposals in considering whether “significant harm” to biodiversity or, specifically, to any of the Sites of Special Scientific Interest, would result. In this case the mitigation clearly was taken into account and was found to be adequate. It was sufficient to prevent any “significant harm”. This was enough to satisfy the first principle in paragraph 118.

The second principle in paragraph 118 was not breached.

The objection pursued by Natural England, and ultimately withdrawn, was to development proposed on land outside any designated site, which might nevertheless affect species within Sites of Special Scientific Interest. If, despite all it knew about the development by early February 2012, Natural England had still thought it might have unacceptable effects on any Site of Special Scientific Interest or any “notified special interest features” it would surely have said so. But it did not. In the circumstances the County Council’s committee could reasonably conclude, as the officers had advised, that the refusal of planning permission was not justified on such grounds.Its decision did not go against the policy in paragraph 118 of the NPPF for “development on land … outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest”.

The last of the principles in paragraph 118 was not engaged in this case.

Unlike “potential Special Protection Areas” and “possible Special Areas of Conservation”, proposed designations of Site of Special Scientific Interest do not come within the advice in paragraph 118 of the NPPF. When FCC’s application was being considered the route of the disused railway line was not a Site of Special Scientific Interest, and there was no definite proposal for it to be designated. Designation was no more than a possibility.

I reject Mr Dove’s submission that that the officers misled the committee about the proposal to designate the disused railway line as a Site of Special Scientific Interest.When the application was considered by the County Council’s committee in April 2012 there was no obvious momentum behind this. The officers cannot be criticized for saying – as they did in paragraph 256 of their report – that the designation was not at that stage being progressed. This was not inaccurate. In the summer of 2011 Natural England had carried out a survey of invertebrates. No formal process followed. The County Council’s officers seem to have assumed, rightly as it turned out, that consultation was not imminent. A possible designation was contemplated, but apparently not until 2015. Even with the advantage of hindsight, it cannot be said that the officers got this wrong. The e-mail correspondence on which Mr Dove relied – between officers of Natural England and between them and the claimant’s ecologist –shows some enthusiasm for designating a strip of land along the path of the abandoned railway. But it does not sustain the submission that the only obstacles to designation were “bureaucratic”. Whether the case for designation had been made was still very much in doubt. And Natural England was not concerned about the development coming forward while the question was still live. It did not fear that the development would spoil the special interest that designation would serve to protect. In its letter to the claimant of 13 March 2012 it confirmed that if planning permission were granted this was unlikely to prevent a new Site of Special Scientific Interest being notified.

The committee knew that in Natural England’s view the disused railway line provided a “key linkage” for butterflies that were “interest features” of the Sites of Special Scientific Interest nearby. The officers referred to this in paragraph 256 of their report. This had been one of the considerations underlying Natural England’s objection. The members could reasonably take it from the withdrawal of that objection that the function of the railway line as a link between the Sites of Special Scientific Interest was not seen by Natural England as an impediment to planning permission being granted. But the officers made sure that the members appreciated the intrinsic value of the disused railway line for wildlife. In paragraph 269 of their report they described the line as a habitat worthy of recognition at county and regional level. The committee had this in mind when it made its decision. Once again, I find it impossible to conclude that the judgment it came to was either unreasonable or contrary to government policy in the NPPF.

This ground of the claim therefore fails.

Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (“the Development Management Procedure Order”) requires a local planning authority, when granting planning permission, to state in its decision notice a summary of its reasons for the grant of permission, and a summary of the policies and proposals in the development plan that were relevant to its decision to grant permission.

When the court is considering the adequacy of summary reasons for a grant of planning permission, it is permissible and sometimes necessary to have regard to the surrounding circumstances (see paragraphs 13 to 19 of the judgment of Sullivan L.J. in R. (Siraj) v Kirklees Metropolitan Council [2011] J.P.L. 571). By their nature a local planning authority's summary reasons for granting planning permission do not present a full account of its decision-making process. A fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer’s recommendation. But in paragraph 16 of his judgment in Siraj Sullivan L.J. said this:

“Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. …”.

Mr Dove submitted:

Mr Elvin and Mr Maurici submitted:

Having rejected Mr Dove’s argument on issues (1) and (2) – which, he acknowledged, was the foundation for what he submitted on this aspect of the claim – I have concluded that this ground too must fail. In my view there was no breach of article 31(1) of the Development Management Procedure Order in this case.

Under article 31(1)the County Council had to provide in its decision notice a summary of the policies in the development plan relevant to its decision. It was not required to refer also to those provisions of the Habitats Directive and the 2010 regulations with which it had sought to comply, or to any passages in the NPPF that it had taken into account. As Mr Dove accepted, the decision notice contains a long list of relevant provisions in the development plan, as well as other policy documents, including the NPPF, with which the proposals were said to be “generally in compliance”.

Terse as they are, the summary reasons given for the grant are also lawful. Elaborate reasons are not required. Brevity is usually a virtue, so long as the essential rationale of the decision is apparent. Here it is.

In this case the members who made the decision to grant planning permission plainly agreed with the conclusions and recommendation in the officers’ report. The court may consider the adequacy of the summary reasons given for the grant in that context (see the judgment of Sullivan L.J. in Siraj , at paragraphs 16 and 19, and the judgment of Richards L.J. in R. (Telford Trustee No. 1 Ltd) v Telford and Wrekin Council [2012] P.T.S.R. 935, at paragraphs 54 to 58). The proposed development had been found to accord with relevant provisions of the development plan, apart from the policies relating to listed buildings – because there was going to be harm to two grade II listed buildings. The County Council’s summary reasons referred to the “overriding need” outweighing the “significant adverse impact” on the settings of those listed buildings. In their report the officers assessed the proposals in unsparing detail, within the relevant policy framework. They explored the likely effects of the development on the interests of biodiversity and nature conservation, conscious of the policies they had to apply. In the circumstances I think the County Council did enough to discharge the statutory requirement for summary reasons in its decision notice. It would have been possible for it to expand on the reasons it gave. But it did not have to. The reasons it did give were adequate.

I have already dealt with Mr Dove’s submission that the officers’ report was deficient because it did not explain how the proposals complied with the advice in paragraph 118 of the NPPF. The point is not good one. And it is no better when presented again as a challenge to the County Council’s summary reasons. The committee was properly advised on the substance of relevant national policy. The decision notice did not have to recite the advice.

If I had found the summary reasons in the decision notice fell short of what was required I would have held that this did not cause the claimant or anyone else substantial prejudice. The reasons why planning permission was granted in this case may readily be seen in the officers’ report, which sets them out at considerable length. In these circumstances it could not be said that anybody has been prejudiced by a deficiency in the reasons stated in the County Council’s decision notice. The remedy then, rather than an order to quash the planning permission, would have been mandatory relief requiring the reasons to be made good (see the judgment of Ouseley J. in R. (Midcounties Co-operative Limited v Wyre Forest District Council [2009] EWHC 964 (Admin), at paragraph 191).

I am not persuaded that the claimant’s grounds were unarguable, and I am therefore able to grant him permission to apply for judicial review. But for the reasons I have given the claim itself is dismissed.