Bristol Civil Justice Centre,
2 Redcliff Street, Bristol, BS1 6GR
Before :
MR JUSTICE HICKINBOTTOM
Between :
THE QUEEN on the application of COMMUNITY AGAINST DEAN SUPER QUARRY LIMITED | Claimant |
- and - | |
CORNWALL COUNCIL | Defendant |
- and - | |
SHIRE OAK QUARRIES LIMITED | Interested Party |
John Pugh-Smith (instructed by Stephen Scown LLP) for the Claimant
Sancho Brett (instructed by Cornwall Legal Services) for the Defendant
David Elvin QC and Richard Moules instructed by DLP Piper UK LLP)
for the Interested Party
Hearing date: 20 January 2017
Judgment
Mr Justice Hickinbottom :
Introduction
Gabbro is a dense, coarse-grained igneous rock. It has been quarried at Dean Point, St Keverne (“the Site”) since the nineteenth century. Those operations have been conducted with the benefit of planning permission since 1947. The Site is in the Lizard section of the Cornwall Area of Outstanding Natural Beauty.
In 2008, for commercial reasons, extraction ceased and the quarry became non-operational. However, in 2012, following a review of a minerals planning permission, permission was granted by the Defendant local planning authority (“the Council”), as the relevant mineral planning authority, for the carrying out of quarrying operations until 2035 (“the ROMP permission”). It is uncontroversial that the Council properly addressed environmental issues before granting that permission. The permission included conditions, but none in relation to perimeter fencing.
In 2014, the Interested Party (“SOQ”), then a prospective purchaser of the Site, made an application for permission for development ancillary to the operation of the quarry, including the erection of a fence around part of its perimeter. Permission was granted by the Council in April 2015; but that decision was successfully challenged in this court, and the decision was quashed. However, in the meantime, SOQ had purchased the Site, and had in fact erected a fence around part of the perimeter. Following the successful judicial review, of course, SOQ had no permission to erect the fence, which consequently became unauthorised development.
The Claimant is a private company limited by guarantee, recently formed for the purpose of opposing the re-opening of the quarry. In this claim, it seeks to challenge the Council’s decision of 29 September 2016 not to take enforcement action in respect of this unauthorised development, notably in the form of an enforcement notice. That decision was made by Jon Drew, an Enforcement Planning Group Leader of the Council’s Planning and Enterprise Service, to whom the relevant power had been delegated by the Council.
On 6 October 2016, His Honour Judge Jarman QC sitting as a judge of this court refused the Claimant’s application for urgent consideration; but adjourned the application for permission to proceed to be listed as a rolled-up hearing, on an expedited basis. At the hearing of that application before me, John Pugh-Smith of Counsel appeared for the Claimant; Sancho Brett, a Solicitor Advocate, for the Council; and David Elvin QC and Richard Moules of Counsel for SOQ. At the outset, I thank each for his contribution.
In its original Statement of Facts and Grounds, the Claimant relied upon three grounds of challenge; but, by the time of the hearing, it pursued only one, namely that, in exercising its functions in determining whether to take enforcement action, the Council acted unlawfully in failing to have proper regard to the requirements of EC Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora (“the Habitats Directive”). I need say nothing further about the abandoned grounds, except that I see the wisdom in not having pursued them.
The Law
The claim brings into play three regulatory schemes, namely (i) the scheme for the protection of bats, (ii) the scheme of enforcement of planning control and (iii) the scheme for risk control at quarries. The relevant law relating to each is uncontroversial, and, for the purposes of this application, can be shortly put.
So far as the protection of bats is concerned, article 12(1)(b) of the Habitats Directive provides, so far as material:
“Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting… (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;…”.
Article 16 provides for derogation from the article 12 obligation, in the following terms (again, so far as relevant to this claim):
“(1) Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, member states may derogate from the provisions of articles 12…: …(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment”.
The Habitats Directive is transposed into domestic law by the Conservation of Habitats and Species Regulations 2010 (SI 2010 No 490) (“the Habitats Regulations”). Regulation 9(3) provides:
“… a competent authority, in exercising any of its functions, must have regard to the requirements of the [Habitats Directive] so far as they may be affected by the exercise of those functions.”
A local planning authority is a “competent authority” for these purposes. In this judgment, references to “regulation 9(3)” are to regulation 9(3) of the Habitats Regulations.
Although, under regulation 9(3), a decision-making planning authority’s obligation is restricted to “having regard” to the requirements of the Habitats Directive so far as those requirements may be affected by its decision, that does require genuine engagement (see R (Woolley) v Cheshire East Borough Council [2009] EWHC 1227 (Admin) at [26]-[28] per His Honour Judge Waksman QC).
Annex IV(a) of the Habitats Directive, and schedule 2 to the Habitats Regulations, list protected species, to include all bats. Additionally, bat species in the United Kingdom are protected under schedule 5 of the Wildlife and Countryside Act 1981 and schedule 12 to the Countryside and Rights of Way Act 2000. However, for the purposes of this claim, except where indicated, these do not add substantively to the European provisions. The focus of this claim is upon the Habitats Directive and Regulations.
Turning to planning enforcement, by section 57(1) of the Town and Country Planning Act 1990 (“the 1990 Act”: statutory references in this judgment are to the 1990 Act unless otherwise indicated), planning permission is required for any “development”, which is defined to include mining.
Part VII of the 1990 Act addresses enforcement of planning control. Section 171A(1) provides that a “breach of planning control” is constituted by:
“(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted…”.
Section 171A(2) provides that, amongst other things not relevant to this claim, the issue of an enforcement notice and the service of a breach of condition notice constitute “enforcement action”.
This claim is particularly concerned with enforcement notices, as the Claimant contends that the Council erred in deciding on 28 September 2016 not to issue such a notice. Section 172 provides:
“(1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them –
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and any other material considerations.”
An enforcement notice cannot be issued – indeed, no enforcement action can be taken – for a breach of planning control in the form of carrying out development without permission after the end of the period of four years beginning on the date on which the operations were substantially completed (section 171B). After that period, the unauthorised development is immune from enforcement process.
Where there is non-compliance with an enforcement notice, then:
the owner of the land is guilty of an offence, as is any person who has control of or an interest in the land who carries on or permits an activity required by the notice to cease (section 179); and
the local planning authority may enter the land and take the steps required to be taken by the notice, and recover the reasonable costs of so doing from the person who is owner of the land (section 178(1)).
If there is an actual or suspected breach of planning control, in addition to issuing an enforcement notice, the planning authority has significant other powers, including the power to:
issue a planning contravention notice requiring a person to provide certain information about a suspected breach of planning control (section 171C(1));
issue a temporary or permanent stop notice where it considers that there has been a breach of planning control, and that it is expedient that the activity which amounts to the breach is stopped (sections 171E and 183); and
serve a breach of condition notice where conditions attached to a planning permission have not been complied with (section 187A).
Furthermore, under schedule 6 to the Wildlife and Countryside Act 1981, it is an offence intentionally to disturb a bat when roosting, unless licensed to do so by Natural England, as the statutory conservation body.
As well as these statutory provisions, there are national policy documents that require a local authority to act proportionately in relation to planning enforcement steps. For example, paragraph 207 of the National Planning Policy Framework provides:
“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary and local planning authorities should act proportionately in responding to suspected breaches of planning control…”
This is supplemented by Section 17b of the National Planning Practice Guidance, “Ensuring effective enforcement” (March 2014) (“the NPPG”). Paragraph 007, under the heading “What options are available to local planning authorities to tackle possible breaches of planning control in a proportionate way?”, includes “retrospective planning application” and “planning contravention notice”. That is expanded in paragraph 011, under the heading “When might formal enforcement action not be appropriate?”, which states:
“Nothing in this guidance should be taken as condoning a wilful breach of planning law. Enforcement action should, however, be proportionate to the breach of planning control to which it relates and taken when it is expedient to do so. Where the balance of public interest lies will vary from case to case.
In deciding, in each case, what is the most appropriate way forward, local planning authorities should usually avoid taking formal enforcement action where:
• there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area;
• development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development;
• in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.”
It is noteworthy that, under this guidance, a planning authority should usually not take enforcement action when, in its assessment, an application for retrospective permission provides a better process for dealing with the relevant planning issues.
This national policy and guidance is reflected in the Council’s own policy, “Planning, Housing and Building Control Local Enforcement Plan”, which, so far as relevant, provides (all emphases being in the original):
“2.1 – General planning enforcement
The Council will operate its planning enforcement activities within the statutory requirements and in accordance with the Council’s policies and procedures. This means that:
• …
• Action will not be taken just because development has started without planning permission.
• The [Council] does not always have to take action but the circumstances of the case must always be considered…’
…
2.3 – Formal enforcement action
… The Council will only take enforcement action when it is considered expedient to do so in the public interest
…
Formal enforcement action will not be instigated solely to regularise breaches in planning control or seek a planning fee. In taking formal enforcement action the Council will be prepared to use whichever available enforcement power or combination of powers that are appropriate to deal effectively with an identified breach of planning control.
In deciding whether to take enforcement action the Council will have regard to the development plan and to any other material considerations. These may include (but are not limited to):
• …
• Protection of species…
…
In considering whether it is expedient to take enforcement action the decisive issue for the Council will be whether the breach of planning control unacceptably affects public amenity or the environment. Any action will be proportionate with the breach of planning control to which it relates…’
…
2.6 – Supportive compliance
The [Council] will be flexible and consider genuine solutions to address confirmed breaches of planning control.”
I was referred to a number of authorities in respect of the application of the provisions of the statutory enforcement scheme, notably R (Prokopp) v London Underground Limited [2003] EWCA Civ 961 (especially at [48] per Schiemann LJ), Ardagh Glass Limited v Chester City Council [2009] EWHC 745 (Admin), and R (Health and Safety Executive) v Wolverhampton City Council [2012] UKSC 34 (especially at [53] per Lord Carnwath of Notting Hill JSC). A number of propositions can be drawn from these cases.
Where a developer is acting in breach of planning control, the statutory scheme assigns the primary responsibility for deciding whether to take enforcement steps – and, if so, what steps should be taken and when – to the relevant local authority. The statutory language used makes it clear that the authority’s discretion in relation to matters of enforcement – if, what and when – is wide. That is particularly the case in respect of enforcement notices, the power to issue a notice arising only “where it appears to them… that it is expedient to issue the notice”. That is language denoting an especially wide margin of discretion. Any enforcement decision is only challengeable on public law grounds. Because of the wide margin of discretion afforded to authorities, where the assertion is that the decision made is unreasonable or disproportionate, the court will be particularly cautious about intervening. Intervention is likely to be rare. However, circumstances may make it appropriate. In Ardagh Glass, because the four-year period for enforcement was imminently to expire, a failure on the part of the planning authority to take prompt enforcement steps would have meant that the development would achieve immunity. In that case, the court ordered immediate enforcement action to be taken.
Finally, in relation to risk control at quarries, regulation 16 of the Quarries Regulations 1999 (SI 1999 No 2024) (“the Quarries Regulations”) provides:
“The operator shall ensure that, where appropriate, a barrier suitable for the purpose of discouraging trespass is placed around the boundary of the quarry and is properly maintained.”
The Factual Background
After a period of non-operation of the quarry, on 11 December 2009, the then owner of the Site (CEMEX UK Materials Limited) applied under section 95 of and schedule 14 to the Environment Act 1995 for the review of the extant mineral planning permission, during which the conditions for quarrying operations at the Site were reconsidered by the Council. The application was supported by a comprehensive Environmental Impact Assessment (“EIA”), including an Ecological Survey Assessment Report dated October 2009 which identified mitigation measures to minimise the impacts of the proposed development in terms of quarrying activities on the habitat as altered by the previous quarrying operations, and on important species including bats. It was concluded in the Executive Summary of the Ecological Survey that, “[i]f the recommended mitigation is implemented, it is considered that the residual impacts [of the quarrying] will be negligible”. Those mitigation measures were reflected in the conditions imposed on the ROMP permission. That consideration did not, of course, take into account the effect of any perimeter fence on the species, such a fence not then being proposed.
On 13 January 2012, on that ROMP application, the Council granted permission to win and work rock material from the Site, subject to a number of conditions, some of which reflected the mitigation measures to which I have referred. The permission expires on 8 August 2035, by which time not only must quarrying operations have ceased, but the Site reinstated in accordance with a plan to be submitted and agreed with the Council (Conditions 2 and 18). Prior to blasting operations, the locations were required to be agreed by the Council (Condition 17). The provisions of the Town and Country Planning (General Permitted Development) Order 1995 (SI 1995 No 418) were displaced, so that no structure could be carried out as ancillary operational development without prior approval of the Council, which would consider the proposed development in the light of the county structure and local mineral plans (Condition 23). There was a condition for the approval of a scheme detailing both the construction of ponds and landscaping within 12 months, and the construction of those ponds and completing of the landscaping within six months thereafter (Conditions 25 and 33). There was also a condition concerning the demolition of disused silos (Condition 31). There was no requirement for the erection of a fence around any part of the quarry.
By this time, SOQ was a prospective purchaser of the Site. It is part of a group of companies, others of which are involved in the construction of tidal lagoon power plants, notably a proposed plant in Swansea Bay which very recently obtained support from the Hendry Review. The gabbro can be used as “rock armour” in sea walls to protect such installations; and it was and is intended to use rock obtained from Dean Quarry at Swansea Bay.
On 27 November 2014, SOQ submitted an application for permission to carry out ancillary development at the Site, including a perimeter fence. The Supporting Statement said (at paragraph 3.21):
“Dean Quarry, as an operational mineral site, represents numerous potential hazards and the site must therefore be secured for health and safety purposes. This is particularly relevant given the public rights of way which run along the south-western, southern and eastern boundaries of the site. It is therefore necessary to fence the boundary of the Quarry.”
The application was accompanied by a Bat Survey Report dated November 2014, which identified one block and some underground tunnels as being used by bats as night/feedings roosts. In consultation with Natural England, those features had been enhanced for use by bats. However, the report said that it was essential that flight corridors to the buildings used by bats be identified and maintained.
It was initially proposed that the whole 2.7km boundary of the Site be fenced. However, as the Officer’s Report on the proposal dated 7 April 2015 makes clear (at paragraph 64), following the expression of local concern, the proposal was amended to reduce this to fencing around the site access and along the boundary with the coastal path. Alexander Richard Blake is a Consents Manager, employed by another group company but seconded to SOQ. According to paragraph 13 of his 26 October 2016 statement, SOQ took the view that, whilst neither the granted ROMP permission nor regulation 16 of the Quarries Regulations mandated a fence around the whole or any part of the Site, fencing the part adjacent to the Coastal Path would be “a responsible course to safeguard the public” and fencing around the road access to the quarry was “considered important to make the quarry secure for commercial purposes”.
The Officer’s Report, which recommended approval of the proposal, said that “site perimeter fencing is required for health and safety purposes, although it is recognised that when the quarry was previously operational, no fencing was used…” (paragraph 61).
Planning permission for the ancillary development, including the fence, was granted on 8 April 2015.
However, the decision on the new permission was challenged by a claim for judicial review, brought by a local resident who is now a director of the Claimant company. The claim was successful. In giving judgment (R (Roskilly) v Cornwall Council [2015] EWHC 3711 (Admin)), Dove J said (at [35]):
“… [I]t is beyond argument that the ROMP permission is the subject of a legally valid permission which followed the consideration of appropriate environmental information in the form of an environmental impact assessment which supported the ROMP application….”
The permission for the ancillary development (including the fence) was quashed on the basis that, although the Council had screened the project and determined that it did not require an EIA, the claimant requested a screening direction from the Secretary of State who, on 9 June 2015 (i.e. after planning permission had been granted), determined that the proposal was likely to have significant effects on the environment and was “[EIA] assessment development” requiring an EIA. Regulation 3(4) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011 No 1824) (“the EIA Regulations”) prohibits planning permission or consent without such an EIA assessment. On 18 December 2015, Dove J therefore quashed the planning permission for the fence; although, of course, this left the ROMP permission to win and work minerals on the Site undisturbed. The application for the ancillary development was remitted to the Council for redetermination.
Meanwhile, between September 2015 and January 2016, SOQ erected a chain link fence along two parts of the perimeter of the Site: a 130m section with the quarry entrance gate inset (“Section 1”), and a 570m section along the coastal path (“Section 2”). In some respects, the fence erected differed from that for which permission had earlier been given.
On 11 January 2016, the Council wrote to SOQ indicating that it did not propose appealing against the decision of Dove J, and asking whether SOQ intended to submit an environmental statement in support of the ancillary development application, failing which, it said, it would refuse. Alternatively, the Council said that it would be open to SOQ to withdraw that application, with a view to submitting a retrospective planning application to regularise the position. The Council indicated that it would prefer this second course, as that would avoid the argument that the ancillary development application should be refused on the basis that the environmental statement had not been submitted within three weeks of the scoping direction. By letter of 19 February 2016, SOQ withdrew its application for permission for ancillary development, with the “firm intention” of submitting an application for retrospective planning permission for the fence under section 73A of the 1990 Act (paragraphs 27-28 of Mr Blake’s 26 October 2016 statement).
Meanwhile, on 12 January 2016, the Council carried out a monitoring visit to the Site, and identified non-compliance with Conditions 25 and 33 of the ROMP permission (see paragraph 28 above), in that the ponds and landscapes had not been completed. Dates were set for their completion.
On 23 May 2016, the Claimant’s solicitors wrote to the Council to request that enforcement action was taken in respect of the fence and other unauthorised development. On 25 May, the Council confirmed that it would investigate the matter. On 1 June, it confirmed that it would give the investigation priority, because of the history of the Site.
On 17 June 2016, the Council issued a planning contravention notice pursuant to Section 171C of the 1990 Act requiring SOQ to provide details about potential breaches of planning control, including the erection of the fence. SOQ returned the completed notice, with the information requested, on 7 July. That confirmed that, although, in breach of Condition 25 of the ROMP permission, the construction of the ponds had not been implemented, “ecology mitigation works” had been undertaken, including a visit by a bat ecologist in April 2015 who confirmed that three bat roosts which had been identified would not be affected by the works for the construction of the ponds.
On 22 July 2016, having assessed SOQ’s responses to the planning contravention notice, the Council sent an email to the Claimant’s solicitors, updating them and proposing various actions including, in relation to the fence, the following:
“A perimeter fence was erected between Sept 15 and Jan 16, before the permission was quashed. It is there for Health and Safety reasons and to prevent vandalism they have suffered in recent months. The developers propose to apply for planning permission for it and state they will submit a fresh screening opinion request by the end of Aug 2016 and will follow up this with a Planning application. The NPPG advice advises that Councils should avoid taking action where they consider that a Planning Application is an appropriate way to regularise the position. In view of this the Council consider that it is proportionate to allow the owners to re-submit a Planning Application for the fence.”
On 15 August 2016, pursuant to regulation 13 of the EIA Regulations, SOQ requested a retrospective scoping opinion from the Council for the erection of the fence.
On 31 August 2016, the Council considered whether further enforcement action in respect of the fence and/or breach of ROMP permission Conditions 25, 31 and 33 should be taken. With regard to “New Fence”, having set out the history and the relevant NPPG guidance, the Delegated Enforcement Report stated:
“The site owners advise that they intend to submit a screening opinion for the fence by the end of August 2016 and then a Planning Application for its retention. In view of the potential public safety implications of removing it and the advice set out in the NPPG above I consider that it would be appropriate to give the site owners an opportunity to seek planning permission for the fences retention. This matter should be reviewed by the end of October 2016 as to progress of the screening opinion/planning application.”
The report concluded as follows:
“As regards to the fence I consider that its visual impact should be balanced with the health and safety of the general public. The NPPG advises that Councils should avoid taking action if it considers that a Planning Application is the appropriate way forward to regularise a breach. The site owners have indicated that they will submit a fresh screening opinion under the EIA Regulations by the end of August 2016 with a view to then submitting a Planning Application. I therefore consider that it would be proportionate to allow the site owners time to do this but that the matter is reviewed at the end of October 2016.
In respect of the breach of conditions regarding the ponds and planting the site owners accept they are in breach of these and I consider that no overriding arguments have been put forward as to why these conditions should not be enforced and a BCN should be served. I do though consider that compliance dates of 6 months for the ponds and April 2017 for the planting would be a proportionate timescale to undertake these works.
Finally for the reasons set out in the above report I do not consider that condition 31 is being breached in respect of the Jetty and Silo walls and therefore no further action should be taken in respect of this.”
Following this report, on 2 September 2016, the Council issued to SOQ a breach of condition notice pursuant to Section 187A(2) of the 1990 Act, requiring compliance with Conditions 25 and 33 of the ROMP permission.
On 12 September 2016, the Council issued a screening opinion for the fence, which said that:
“The development is part of a wider proposal to recommence mineral extraction at the site and the potential cumulative impacts need to be taken into account rather than considering the development in isolation.”
The opinion indicated that the principal impact of the fence was visual – indeed, it said there were no other direct impacts, other than visual – which could be lessened by careful siting and appropriate landscaping. However, it concluded that, by virtue of its nature, size and location, the fence was likely to have significant effects on the environment, and thus required an EIA. SOQ immediately requested a screening direction from the Secretary of State.
To prevent a permanent cessation of mining under the ROMP permission for the purposes of paragraph 3 of schedule 9 to the 1990 Act, SOQ had to carry out significant winning and working of minerals by 8 October 2016, a date which had been extended by the Council. By September 2016, SOQ had begun preparations for blasting at the Site. It obtained a report from Cornwall Environmental Consultants (“CEC”), to the effect that there was no evidence that the proposed blasting would interfere with any bat commuting route. On 21 September, SOQ submitted details of its proposed blast locations to the Council, which, on 26 September, agreed those locations and confirmed compliance with Condition 17 of the ROMP permission. On 6 October, whilst reserving all of its rights in respect of enforcement, the Council confirmed to SOQ that there had not been a cessation of mining operations on the Site.
In the meantime, on 23 September 2016, the Claimant’s solicitors emailed the Council (including Mr Drew directly) indicating that they had instructions to commence judicial review proceedings for failing to take any, or any effective, enforcement action against the unauthorised development at the Site, including a mandatory order that the Council take effective action “in order to halt and thereafter prohibit likely significant effects on the environment”.
On 29 September 2016, the Council re-considered whether further enforcement action in respect of the fence and/or breach of ROMP permission conditions should be taken. It did so then – and did not wait until October, as earlier decided – “in the light of… some recent drilling work on site and the expectation that blasting [was] to shortly resume”. The report noted that:
“The combination of geology, mild oceanic climate conditions and its southerly location has led to the development of a unique range of habitats with many rare species of local and national importance.”
It also noted that the Claimant was “requiring to take immediate enforcement action”; but said:
“The Environmental Impact of the fence is important and depending upon a full consultation process and consideration of the material implications of the development the Council may eventually find it acceptable once the screening/scoping process has been completed and a Planning application determined. If approved the Council is likely to want to impose planning conditions to secure a time frame for its removal (linked to the expiration of the ROMP for example). Landscaping may also be required as might a method statement to ensure that the environment is protected at the point the fence is removed. In the Council’s Enforcement Report on the 2nd September (which authorised the BCN for the ponds and landscaping) the applicant was given until the end of October 2016 to progress a screening opinion/planning application. The Council did not consider that the fence was so environmentally damaging that it should be removed immediately.”
As to “Disturbance to Bats”, the report said:
“The operator has produced a bat survey which was undertaken in 2014 and confirmed that the sensitive locations associated with the use of bats are located in redundant structures and sympathetically converted buildings on the eastern side of the quarry. The operator has confirmed that it does not intend to undertake any works in this area at this time.”
The report concluded that there were no breaches of ROMP permission conditions, and:
“As regards to the fence the quarry has a planning permission to win and work materials, the site owner has made a request to the [Secretary of State (‘the SoS’)] for a Screening Direction in respect of the fence to ensure certainty on this matter. Following the judgement on the Roskilly Judicial Review earlier this year it would be unreasonable to expect a planning application for the fence accompanied by an Environmental Statement without the confirmation by the SoS of the fence being EIA development. There are no immunity issues in respect of the fence which has only been erected in the last 12 months, and as the site has suffered vandalism it is not unexpected that the sites owners wish to secure their perimeter. The site owners are working towards submitting a Planning Application and the Scoping/Screening process to enable this is underway. It is recommended that no enforcement action is taken at this stage but the matter is reviewed by the 14th December 2016 if a Planning Application is not submitted.”
The Council thus decided, on 29 September 2016, not to take any further enforcement in respect of the fence as unauthorised development at that stage. It is, of course, that decision which the Claimant seeks to challenge in this claim.
On 30 September 2016, the IP carried out significant winning and working of minerals at the Site by blasting approximately 10,000 tonnes of rock, in the locations pre-approved by the Council.
On 14 October 2016, SOQ withdrew its request for a screening direction from the Secretary of State, thus conceding that the fence is EIA development.
On 21 October 2016, SOQ wrote to the Council to confirm that a planning application would be submitted as soon as possible; and, on 15 November, the Council met SOQ to discuss, amongst other things, when a planning application was likely to be submitted. On 20 December, the Council wrote to the Claimant’s solicitors to confirm the outcome of the meeting, in these terms:
“A meeting took place between Council officers and representatives of the operator in the week commencing 14 November 2017.
The operator has confirmed its intention to submit a planning application for the fence and will endeavour to do so by 12 January 2017. It cannot guarantee that this date will be met because it intends to rely on external specialist consultants to prepare the necessary Environmental Statement and there may be delays in progressing matters over the Christmas period.
The Council has carefully considered the circumstances of this matter and considers that it would be appropriate to refrain from taking any further enforcement action in respect of the fence until 12 January 2017 on the basis that an application is likely to be submitted on or around this date for the reasons previously provided.
The Council will review the position and decide whether further action should be taken in the event that no application is submitted and will in any event keep the matter under review.”
There is no suggestion that this record is anything but accurate.
Before that letter was sent, the position after the meeting was recorded in a further Delegated Enforcement Report dated 15 December 2016. After a lengthy review of the history and relevant guidance, the report stated:
“In terms of going forward Council Officers met with representatives of the operators on the 15th November 2016 and they have followed that meeting with an email stating that they intend to submit a retrospective Planning Application for the fence and will endeavour to submit it by the 12th January 2017. This date though cannot be guaranteed due to the short time scales involved, Christmas falling within this time period and that the operators will be reliant on external consultants to provide assessments of the key chapters in the Environmental Statement.
I consider that the above timetable is reasonable when considering the work required to complete an Environmental Statement and that no enforcement action be taken but that the matter is reviewed shortly after the 12th January if an application is not submitted by this time.”
SOQ submitted an application for retrospective planning permission for the fence on 11 January 2017. It was validated in the week commencing 16 January 2017.
The application was accompanied by an Environmental Statement of nearly two hundred pages. That states that the fence was erected “in order to enhance site security and to prevent trespass within the quarry… and vandalism” (paragraph 1.3.1). So far as adverse impacts are concerned, it says that cumulative effects are considered in each assessment chapter (paragraph 1.3.5).
Chapter 5, prepared by CEC, specifically considers “Terrestrial ecology”, including the potential impact of the construction, presence and decommissioning of the fence, and the extent (if any) that it will increase the significance of the potential impacts caused by the actual quarrying at the Site. The assessment includes a desk study of a search of all ecological records within a 2km radius of the Site, including the October 2009 assessment (included with the ROMP application) and the November 2014 Bat Survey Report. It also indicates that CEC had been undertaking a range of surveys on behalf of SOQ throughout 2016, including remote detector, emergence and activity bat surveys, which had not yet been written up but the findings of which had been taken into account as “an up to date and accurate assessment of the bat use of Dean Quarry” (paragraph 5.3.24). Paragraph 5.5 deals with “Assessment of impacts”. It carefully and fully assesses the impact of the construction, presence and decommissioning of the fence, particularly with reference to disturbance to habitats and to bats. In particular, it addresses (i) retrospectively, the adverse impact of construction of the fence, (ii) the adverse impact of the presence of the fence, not only on the roosts, but also on flight corridors, (iii) the potential adverse impact of decommissioning, and (iv) the cumulative impact of the fence and the quarrying operations authorised by the ROMP permission.
Mr Blake, in my view fairly, summarises the relevant conclusions as follows (paragraph 17 of his 13 January 2017 statement):
Construction of Section 1 of the fence did not impact on the bats’ use of the quarry, and construction of Section 2 did not result in any significant effects on the use of the buildings previously identified as being used by bats (see paragraphs 5.5.11-5.1.15 of the Environmental Statement).
The presence of the fence has no effects on bats (paragraphs 5.5.22-5.5.24).
With regard to decommissioning, there are no foreseeable impacts to any bats that may continue to use the quarry (paragraph 5.5.31).
The impact of constructing the fence did not, and the existence of the fence will not, increase the significance of any potential impacts on habitats of resuming active quarrying (paragraphs 5.6.4 and 5.6.8).
Mr Blake concludes (at paragraph 18 of that statement):
“As such, even if the Council did not have this information before it at the date it took the decision complained of, the [Environmental Statement] confirms that [S]ection 1 of the fence has no impact on bats and the installation of… [S]ection 2 of the fence had no significant impact on bats.”
Mr Drew, in his statement of 13 January 2017, after referring to the November 2014 Bat Survey Report’s consideration of active roosts, adds this:
“14. Due to the modest height of the fence it would have little if any impact on the bats and their use of flight corridors.
15. I have recently discussed these issues with the Council’s ecologist who confirms the position as set out above and that the bats would fly above the fences and there should be no significant impact on the bats and their habitats.
16. There is no evidence to state that the fence harms the habitats of protected species and in particular bats. If the Council took enforcement action at this time with no evidence that protected species are likely to be harmed and contrary to the advice of its own ecologist it is likely that this enforcement action would fail if challenged.”
The Ground of Challenge
Mr Pugh-Smith submits that, at the time of the challenged decision (29 September 2016), Mr Drew on behalf of the Council appears not to have understood that regulation 9(3) applied when it was considering the exercise of its enforcement powers. There was no reference to either the Habitats Directive or the Habitats Regulations in the Delegated Enforcement Report. The only relevant information that Mr Drew had before him was historic, and did not concern the impact of the fence. No ecological report had been prepared by SOQ that considered the location and effects of any fence, which was outside the ROMP application. The issue of bat disturbance in later reports only addressed the possible effects of the demolition of structures, and was in the context of operating the quarry itself for the winning and working of minerals. Bat flight corridors had never been considered in the context of the fence. There had also been no sensible consideration of the cumulative effect on the environment (and, notably, on bats) of the fence and the operations authorised by the ROMP permission.
Thus, he submitted, when considering enforcement action in late September 2016, Mr Drew (and, thus, the Council) had simply failed to engage with, or apply, the relevant provisions of the Habitats Directive and Regulations. That was an error in law.
Mr Pugh-Smith does not accept that the adverse impact on bats has been properly considered in the January 2017 Environmental Statement – which he does not concede is adequate to show that there will not be likely significant adverse effects on bats as a result of the fence – but, even if it has, he contends that the Claimant is entitled to (i) a declaration that, on 29 September 2016, the Council failed properly to exercise its duty to have regard to the Habitats Directive when determining whether to take enforcement action; and (ii) a declaration that the erection of the fence and winning and working of minerals carried out at the Site after January 2016 were unlawful in that they breached the Habitats Directive and Regulations. That is the relief – and, now, the only substantive relief – which the Claimant seeks.
Discussion
Forcefully as those submissions were put, I cannot accept them. Indeed, for the reasons put forward by Mr Brett, ably supported by Mr Elvin, I do not consider the ground to be arguable.
In coming to that conclusion, I have particularly taken into account the following.
The Council, as enforcement authority, had a wide discretion as to whether any enforcement action should be taken in respect of the fence as unauthorised development; and, if so, what action should be taken. In particular, it had such a discretion as to when any further enforcement steps should be taken.
Looking at the planning history, as set out above, it is clear that the Council generally (and, in particular, Mr Drew) had the potential adverse environmental impact of the fence well in mind at all relevant times. It is inconceivable that they did not. In June 2015, contrary to the screening opinion that the Council had given, the Secretary of State had issued a screening direction on the basis that the fence was likely to have significant effects on the environment, and thus required an EIA (see paragraph 35 above); and the Council itself, just two weeks before the decision now sought to be challenged, issued a screening opinion to the same effect (paragraph 46 above). On 23 September 2016, just days before that decision, the Claimant had emailed Mr Drew indicating that they had instructions to commence judicial review proceedings for a mandatory order that the Council take effective action “in order to halt and thereafter prohibit likely significant effects on the environment” (paragraph 48 above).
I accept that the main concern may have been in respect of the visual impact of the fence – that is made patent in the Council’s screening opinion of 12 September 2016 – but it is clear that the potential adverse effect on bats was also in the mind of the Council and particularly Mr Drew at all relevant times. In support of the application for permission for the development including erection of the fence, SOQ obtained and submitted the November 2014 Bat Survey Report (paragraph 31 above). In the September 2016 Delegated Enforcement Report, there is a section on “disturbance of bats” (paragraph 51 above).
Again, I accept that neither the Enforcement Report, nor any other documents that Mr Drew had in September 2016, referred to the issue of potential adverse impact upon bats in any great detail. In particular, as Mr Pugh-Smith emphasised, they did not expressly consider the adverse impact of the presence of the fence on bat flight corridors or the cumulative effect of the fence with the quarrying operations authorised by the ROMP permission. However, I accept Mr Brett’s submission: they did not need to do so, because (a) the Enforcement Report was only intended to provide a summary of the Council’s considerations, and (b) as the Council considered that the impact of the fence on bats would be, at most, limited, there was no need to focus on this issue.
In the Delegated Enforcement Report, Mr Drew was entitled to focus on the main issues, as he considered them to be, of which there were many. It is to be noted that the fence was not continuous. Few bats had ever been identified at the Site, and there was no evidence that many bats were ever roosting or foraging there. The evidence was that the foraging was in the west of the Site, away from the main (Section 2) length of fence. There could have been no significant foraging to the east of the Site, because the sea was directly adjacent. Proceeding on the basis that the impact of the fence on bats was, at most, minor was perhaps inevitable: it was certainly justified.
I do not accept Mr Pugh-Smith’s submission that Mr Blake conceded that Mr Drew did not consider the relevant provisions of the Habitats Directive and Regulations in paragraph 18 of his 13 January 2017 statement (quoted at paragraph 62 above). Whilst that paragraph may perhaps have been better phrased, when viewed in context, it is in my view tolerably clear: it means no more than, even if the Mr Drew had had access to the information now available in the January 2017 Environmental Statement, it would not have made any difference to the 29 September 2016 decision not then to take any immediate further enforcement action, because that information confirmed the lack of adverse impact upon which Mr Drew had then proceeded. In other words, even if Mr Drew had erred as Mr Pugh-Smith contends, the error was immaterial. That is a very different thing from conceding that Mr Drew did so err.
Mr Pugh-Smith also criticised the failure to consider the cumulative effect on bats of the fence with the quarrying operations authorised by the ROMP permission. However, I accept Mr Elvin’s submission that the applicable criteria for “Changes and extensions” to authorised EIA development (such as the operations the subject of the ROMP permission) are set out in paragraph 2(13) of schedule 2 to the EIA Regulations, namely whether “the development as changed or extended may have significant adverse effects on the environment”, or whether the relevant “thresholds and criteria… applied to the change or extension are met or exceeded” (emphasis added, in both quotations). Therefore, whilst the impact of the change or extension upon the authorised development has to be considered, the focus is upon the effect of the change or extension itself. Thus, the wider issues in relation to the quarry (e.g. as to traffic movements, noise, blasting, dust etc) do not have to be (re)assessed in the Environmental Statement and the EIA for the fence. In any event, in the circumstances of this case, I do not consider the criticism realistic. The effect of the quarrying operations on bats had been reduced to insignificant by the mitigation that had been put in place by the ROMP permission conditions, including the requirement of Condition 17 that the location of blasting operations be pre-approved by the Council. The fence would be more likely to affect the flight corridors of bats entering and leaving the Site. The cumulative effect, if any, is likely to be very minor. Mr Drew cannot be criticised for proceeding on that basis.
Referring to (e.g.) the application for permission to carry out the ancillary works (paragraph 30 above) and the Officer’s Report in respect of the application (paragraph 33 above), Mr Pugh-Smith submitted that it had been conceded that the perimeter fence was “necessary”, so that operations on the Site for the winning and working of minerals would be unlawful without it. However, as I have indicated, fencing was not a requirement of the ROMP permission which, if it was necessary from a planning perspective, it would have been. SOQ have made it clear that they consider it is “necessary” to fence the quarry on health and safety grounds. However:
“Necessary” here is not used in an absolute sense, but rather as requiring an exercise to be undertaken balancing the health and safety risks against, amongst other things, planning factors such as any adverse impact on landscape and/or habitats and species. It is noteworthy that, initially, SOQ applied for planning permission on the basis that full perimeter fencing was “necessary” on health and safety grounds (paragraph 30 above).
In any event, steps that are reasonably required for such health and safety purposes are not inevitably necessary for planning purposes. The two regimes are separate. If the responsible health and safety authority wishes to take enforcement action on health and safety grounds, then it is free to do so, irrespective of any stance taken by the planning authority.
In any event, again as Mr Brett submitted, the main reason for the Council taking no further enforcement action on 29 September 2016 was, clearly, because SOQ had indicated that it intended to make a retrospective planning application in respect of the fence, which would be required to be accompanied by an Environmental Statement and would be the subject of a full EIA including consultation. In line with national guidance, the Council considered that that would be the appropriate process for considering relevant factors including the impact of the fence on bats; it would be proportionate to allow SOQ time to make that application; and that process would enable the Council to impose conditions to regulate matters such as mitigation by way of landscaping and the length of time for which the fence would be authorised. It was open to the Council to consider that that process would better address its obligations under the Habitats Directive so as to fulfil regulation 9(3). The Council closely monitored the progress of the making of the application. It never indicated that it would not take enforcement action in respect of the fence – indeed, it reserved its right to take enforcement action in the future – only deciding that it would stay its hand if a planning application were to be made reasonably promptly. What was reasonable promptness, in these circumstances, was a matter for the Council itself.
In fact, an application, with a full Environmental Statement, was made on 11 January 2017. That statement is consistent with the basis upon which Mr Drew proceeded on 29 September 2016, namely that the adverse impact of the fence upon bats is insignificant. The Council’s own ecologist has confirmed that to be the case, and in particular has confirmed that the fence will not adversely affect bat flight corridors at all, because of its limited height. As a result, Mr Pugh-Smith, rightly, abandoned his request for relief in the form of a mandatory order requiring the Council to take further enforcement action now. As Mr Blake indicated, the new evidence would make any error by Mr Drew on 29 September 2016 immaterial. I was unimpressed by Mr Pugh-Smith’s submission that the conclusion of the Environmental Statement may not be confirmed after the full EIA. That may be so; but the Council cannot be criticised for deciding not to take immediate further enforcement action in respect of the fence, in circumstances in which, at present, there is no evidence that it will have any adverse effects on bats, or any other habitat or species. Certainly, the Council cannot be acting unlawfully in making such a decision.
However, for the reasons I have given, I am wholly unpersuaded that the Council, through Mr Drew, did act in breach of the obligation under regulation 9(3) when deciding on 29 September 2016 not to take any immediate further enforcement steps in respect of the fence. In my judgment, the decision not to take enforcement action then (and, so far as a continuing breach is alleged, since), but rather to wait until an application for retrospective planning permission were made, was a lawful and legitimate exercise of its discretion under section 172 of the 1990 Act; and fully consistent with both principle and relevant guidance. Indeed, I consider the contrary to be unarguable.
Conclusion
For the reasons I have given, I shall refuse permission to proceed.
I do so because, as I have indicated, I consider the sole ground upon which the claim was based to be unarguable; but I should add that, generally, absent extraordinary (i.e. rare) circumstances (including those as pertained in Ardagh Glass), I consider that this court should be slow to entertain applications in respect of a failure to take enforcement action against particular unauthorised development. Whilst not in any way suggesting that the application in this case has been improperly made, that is particularly so where, as here, the focus of the claimant’s real complaint is not upon the unauthorised development in itself, but upon other related authorised development which it is committed to stop.