AC-2024-LON-004013 - [2025] EWHC 2194 (Admin)

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected herself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.

The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

“An application under section 288 is not an opportunity for a review of the planning merits…..”

In St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746, at [6] – [7], the Court of Appeal set out the principles upon which the Court will act in an application for statutory review under section 288 TCPA 1990. Lindblom LJ held:

“6.

In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the “seven familiar principles” that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

“(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981)42 P. & C.R. 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993)66 P. & C.R. 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

7.

Both the Supreme Court and the Court of Appeal have, in recent cases, emphasised the limits to the court's role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers' reports to committee. The conclusions in an inspector's report or decision letter, or in an officer’s report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).”

In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath JSC held at [25]:

“… the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly.”

A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.

In Clarke Homes, Sir Thomas Bingham MR said at 271-2:

“I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”

The Habitats Regulations continue to have effect in UK law, following exit from the EU, because they are EU-derived domestic legislation and retained EU law (sections 1B(7), 2(1) and 6(7) of the European Union (Withdrawal) Act 2018). It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law (section 6(3) of the European Union (Withdrawal) Act 2018).

Article 6 of the Habitats Directive provides:

“Article 6

1.

For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

2.

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3.

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.

4.

If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”

The Habitats Directive was transposed into UK domestic law by the Habitats Regulations. Article 6(1) is given effect by regulation 9(1) of the Habitats Regulations and Article 6(2) is given effect by regulation 9(3). Article 6(3) is given effect by regulation 63 of the Habitats Regulations and Article 6(4) is given effect by regulation 64.

Regulation 9 of the Habitats Regulations provides, so far as is material:

“9.

— Duties relating to compliance with the Directives

(1)

The appropriate authority, the nature conservation bodies and, in relation to the marine area, a competent authority must exercise their functions which are relevant to nature conservation, including marine conservation, so as to secure compliance with the requirements of the Directives.

(2)

…..

(3)

Without prejudice to the preceding provisions, a competent authority, in exercising any of its functions, must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions.”

Regulation 3 interprets “appropriate authority” as the Secretary of State and any person exercising any function of the Secretary of State. By regulation 7, a competent authority includes any Minister of the Crown, government department, statutory undertaker, public body of any description or person holding public office.

The assessment of plans or projects is governed by regulation 63 of the Habitats Regulations which provides, so far as is material:

“63.— Assessment of implications for European sites and European offshore marine sites

(1)

A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—

(a)

is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b)

is not directly connected with or necessary to the management of that site,

must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.

(2)

A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment

or to enable it to determine whether an appropriate assessment is required.

(3)

The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies.

(4)

It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate.

(5)

In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).

(6)

In considering whether a plan or project will adversely affect the integrity of the site, the competent authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which it proposes that the consent, permission or other authorisation should be given.

…..

(9)

In paragraph (1) the reference to the competent authority deciding to undertake a plan or project includes the competent authority deciding to vary any plan or project undertaken or to be undertaken.”

Regulation 64 of the Habitats Regulations sets out the circumstances where a plan or project may be carried out for imperative reasons of overriding public interest, notwithstanding a negative assessment:

“64.

— Considerations of overriding public interest

(1)

If the competent authority is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

(2)

Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

(a)

reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

(b)

any other reasons which the competent authority, having due regard to the opinion of the appropriate authority, considers to be imperative reasons of overriding public interest.

(3)

Where a competent authority other than the Secretary of State or the Welsh Ministers desires to obtain the opinion of the appropriate authority as to whether reasons are to be considered imperative reasons of overriding public interest, it may submit a written request to the appropriate authority—

(a)

identifying the matter on which an opinion is sought; and

(b)

accompanied by any documents or information which may be required.

(4)

In giving its opinion as to whether the reasons are imperative reasons of overriding public interest, the appropriate authority must have regard to the national interest, and provide its opinion to the competent authority.

……”

In the leading case of Wyatt v Fareham BC and Others [2022] EWCA Civ 983, Sir Keith Lindblom SPT set out the key principles to be applied to an appropriate assessment:

“9.

There is a wealth of case law relevant to article 6(3) and regulation 63, both in the Court of Justice of the European Union (“the CJEU”) and in the domestic courts. Some basic points emerge:

(1)

The duty imposed by article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations rests with competent authorities, not with the courts. Whether a plan or project will adversely affect the integrity of a European protected site under regulation 63(5) is always a matter of judgment for the competent authority itself (see the judgment of the CJEU in Holohan v An Bord Pleanála (Case C-461/17) [2019] PTSR 1054, at paragraph 44). That is an evaluative judgment, which the court is neither entitled nor equipped to make for itself (see the judgment of Lord Carnwath in R. (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] 1 W.L.R. 3170, at paragraph 41, and the judgment of Lord Justice Sales, as he then was, in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PTSR 1417, at paragraph 83). In a legal challenge to a competent authority’s decision, the role of the court is not to undertake its own assessment, but to review the performance by the authority of its duty under regulation 63. The court’s function is supervisory only. This has been emphasised often in the domestic cases (see, for example, the recent first instance judgment in Compton Parish Council v Guildford Borough Council [2020] J.P.L. 661, at paragraph 207).

(2)

In Coöperatie Mobilisation for the Environment UA, Vereniging Leefmilieu v College van Gedeputeerde Staten van Limburg (Case C-293/17) [2019] Env. L.R. 27 (“Dutch Nitrogen”),the CJEU said that it is “for the national courts to carry out a thorough and in-depth examination of the scientific soundness of the “appropriate assessment”…” (paragraph 101 of the judgment), which “makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which it is for the national court to ascertain” (paragraph 104). The force of these statements is that the court, for its part, must be wholly satisfied in the exercise of its supervisory jurisdiction that the competent authority’s performance of its obligations under article 6(3) was lawful. It must satisfy itself of the lawfulness of the authority’s consideration of the scientific soundness of the appropriate assessment. But there is nothing in the CJEU’s judgment to suggest that it intended to transform the respective roles of the competent authorities and the domestic courts by giving the court the job of undertaking an alternative appropriate assessment of its own.

(3)

When reviewing the performance by a competent authority of its duty under regulation 63, the court will apply ordinary public law principles, conscious of the nature of the subject-matter and the expertise of the competent authority itself. If the competent authority has properly understood its duty under regulation 63, the court will intervene only if there is some Wednesbury error in the performance of that duty (see the judgment of Sales L.J. in Smyth, at paragraph 80, and the judgment of this court in Plan B Earth v Secretary of State for Transport [2020] PTSR 1446, at paragraphs 68 and 75 to 79, which were not doubted by the Supreme Court in the same proceedings ([2021] PTSR 190)). When exercising its supervisory function, the court will apply the normal Wednesbury standard, not a heightened standard such as “anxious scrutiny” (cf. R. v Ministry of Defence, ex parte Smith [1996] Q.B. 517, and R. (on the application of Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840). It is well-established that such a heightened standard will apply only where fundamental rights or constitutional principles are at stake (see the judgment of Lord Carnwath in Kennedy v Charity Commission [2014] UKSC 20, at paragraph 245, and the first instance decision in R. (on the application of McMorn) v Natural England [2015] EWHC 3297 (Admin), at paragraphs 204 and 205). Given the demanding requirement inherent in regulation 63(5) – for the competent authority to ascertain that the project “will not adversely affect the integrity of the European site” – the court’s examination of the authority’s performance of its duty will be suitably exacting within the bounds of its jurisdiction. But it should be remembered that the autonomous approach of the domestic courts in judging the lawfulness of such action has been explicitly approved by the CJEU (see the judgment of this court in Plan B Earth, at paragraphs 74, 75 and 137, discussing the CJEU’s decision in Craeynest v Brussels Hoofdstedelijk Gewest(Case C-723/17) [2020] Env. L.R. 4).

(4)

A competent authority is entitled, and can be expected, to give significant weight to the advice of an “expert national agency” with relevant expertise in the sphere of nature conservation, such as Natural England (see the judgment of Sales L.J. in Smyth, at paragraph 84, and the first instance judgment in R. (on the application of Preston) v Cumbria County Council [2019] EWHC 1362 (Admin), at paragraph 69). The authority may lawfully disagree with, and depart from, such advice. But if it does, it must have cogent reasons for doing so (see the judgment of Baroness Hale in R. (on the application of Morge) v Hampshire County Council [2011] 1 W.L.R. 268, at paragraph 45, the judgment of Sales L.J. in Smyth, at paragraph 85, and the first instance judgment in R. (on the application of Prideaux) v Buckinghamshire County Council [2013] Env. L.R. 32, at paragraph 116). And the court for its part will give appropriate deference to the views of expert regulatory bodies (see, for example, the judgment of Lord Justice Beatson in R. (on the application of Mott) v Environment Agency [2016] 1 W.L.R. 4338, at paragraphs 69 to 77).

(5)

When provided with expert evidence in a claim for judicial review, the court will not substitute its own opinion for that of the expert. As this court emphasised in R. (on the application of BACI Bedfordshire) v Environment Agency [2020] Env L.R. 16, at paragraph 87, “[unless] there is clear evidence revealing a failure of … expertise – for example, some conspicuous factual or scientific error – the court is entitled to conclude there was no such failure”. Experts may be expected to provide enough explanation to enable the court to decide whether the views they have stated are based on a conspicuous error (see the judgment of Sales L.J. in Smyth, at paragraph 83). But the court will bear in mind that decisions which entail “scientific, technical and predictive assessments by those with appropriate expertise” and which are “highly dependent upon the assessment of a wide variety of complex technical matters by those who are expert in such matters and/or who are assigned to the task of assessment (ultimately by Parliament)” should be accorded a substantial margin of appreciation (see the judgment of this court in Plan BEarth, at paragraph 68, and, at first instance in the same case, Spurrier v Secretary of State for Transport [2020] PTSR 240, at paragraphs 176 to 180).

(6)

The requirement in the second sentence of article 6(3) of the Habitats Directive and in regulation 63(5) of the Habitats Regulations embodies the “precautionary principle, and makes it possible effectively to prevent adverse effects on the integrity of protected sites as a result of the plans or projects being considered” (see the judgment of the CJEU in Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA intervening) (Case C-127/02)) [2005] 2 C.M.L.R. 31 (“Waddenzee”), at paragraph 58). The “precautionary principle” requires a high standard of investigation (see the judgment in Waddenzee, at paragraphs 44, 58, 59 and 61).

(7)

The duty placed on the competent authority by article 6(3) and regulation 63 is to ascertain that there will be no adverse effects on the integrity of the protected site, but that conclusion does not need to be established to the standard of “absolute certainty”. Rather, the competent authority must be “satisfied that there is no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned” (paragraphs 44, 58, 59, and 61 of the CJEU’s judgment and paragraphs 107 and 108 of the Advocate General’s opinion in Waddenzee, and the judgment in Holohan, at paragraphs 33 to 37). In Waddenzee (at paragraph 59), the CJEU emphasised the responsibility of the competent authority, having taken account of the conclusions of the appropriate assessment, to authorise the proposed development “only if [it] has made certain that it will not adversely affect the integrity of that site”. That, it said, “is the case where no reasonable scientific doubt remains as to the absence of such effects”. But as Advocate General Kokott explained in Waddenzee (in paragraphs 102 to 106 of her opinion), a requirement of “absolute certainty” would be “disproportionate”. As she said (at paragraph 107), “the necessary certainty cannot be construed as meaning absolute certainty …”, the conclusion of an appropriate assessment is, “of necessity, subjective in nature”, and “competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty”. Similar observations appear in the judgment itself (in paragraphs 44, 58, 59 and 61). As the Supreme Court acknowledged in Champion, adopting the approach in Waddenzee, “while a high standard of investigation is demanded, the issue ultimately rests on the judgment of the authority” (see the judgment of Lord Carnwath, at paragraph 41). This approach is, in essence, what the “precautionary principle” requires in the context of article 6(3) of the Habitats Directive and regulation 63 of the Habitats Regulations.

(8)

The requirement that there be “no reasonable doubt as to the absence of adverse effects on the integrity of the site concerned” does not mean that the “reasonable worst-case scenario” must always be assessed. In the European Commission guidance document entitled “Communication on the precautionary principle” (2000) it is stated in Annex III that “[when] the available data are inadequate or non-conclusive, a prudent and cautious approach to environmental protection, health or safety could be to opt for the worst-case hypothesis”. That guidance, however, is not law (see Heard v Broadland District Council[2012] Env. L.R. 23, at paragraph 69, and Prideaux, at paragraph 112), nor is it in mandatory terms. What is required in law is a sufficient degree of certainty to ensure that there is “no reasonable doubt” on the relevant question. It may sometimes be useful to consider a “reasonable worst-case scenario” when assessing whether the necessary degree of certainty has been achieved. But whether there are grounds for “reasonable doubt” will always be a matter of judgment in the particular case.

(9)

An appropriate assessment must be based on the “best scientific knowledge in the field” (see Holohan, at paragraph 33). Such knowledge must be both up-to-date and not merely an expert’s bare assertion (see the judgment of Sales L.J. in Smyth, at paragraph 83). And the concept of “best scientific knowledge” is not a wholly free-standing requirement, separate from the precautionary principle itself. It is inherent in the precautionary principle, and in the concept of “no reasonable doubt”.

(10)

What is required of the competent authority, therefore, is a case-specific assessment in which the applicable science is brought to bear with sufficient rigour on the implications of the project for the protected site concerned. If an appropriate assessment is to comply with article 6(3) of the Habitats Directive it “cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned” (see the judgment of the CJEU in Sweetman v An Bord Pleanála (Case C-258/11) [2014] PTSR 1092, at paragraph 44, and its judgment in People Over Wind and Sweetman v Coillte Teoranta (Case C-323/17) [2018] PTSR 1668, at paragraph 38).”

Ms Blackmore KC made the following submissions on mitigation. First, mitigation requires evidence. The provision of mitigation cannot be relied on in the absence of information regarding the effectiveness of the mitigation: Case C-142/16 Commission v Germany (26 April 2017) at [34] - [38]. It is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm to the integrity of the site concerned, by guaranteeing beyond all reasonable doubt that the project at issue will not adversely affect the integrity of that site, that such a measure may be taken into consideration in the appropriate assessment: Case C-293/17, C-294/17 Coöperatie Mobilisation for the Environment and Vereniging Leefmilieu [2019] Env LR 27 (“Dutch Nitrogen Case”) at [126].

Second, the appropriate assessment must not take into account the future benefits of mitigation measures if those benefits are uncertain e.g. because the procedures needed to accomplish them have not yet been carried out or because the level of scientific knowledge does not allow them to be identified or quantified with certainty: Dutch Nitrogen Case at [126] and [130].

In Wyatt, at [45], Lindblom LJ rejected the submission that the Council had erred in law when performing its duty under regulation 63(5) of the Habitats Regulations not to grant planning permission unless it had ascertained that the proposed development would not adversely affect the integrity of the European site, holding:

“The council’s conclusion on the crucial question under regulation 63(5) was, ultimately, an evaluative judgment for it to make as “competent authority”. And in my view the conclusion it reached, as a matter of evaluative judgment, was legally sound.”

Lindblom LJ then set out the correct approach for the Court to adopt, at [50]:

“More generally, it seems to me that the judge adopted the correct approach in his consideration of the council’s appropriate assessment as a whole. He understood that the Wednesbury standard of review had to be deployed with suitable rigour in the legislative context here. He knew that he had to establish whether, in all the circumstances, the council had reached a reasonable and lawful conclusion, as a matter of its own exercise of evaluative judgment, in ascertaining whether the high threshold set by regulation 63(5) had been surmounted. He applied an appropriately intense standard of scrutiny, consistent with the proper application of Wednesbury principles in the light of the jurisprudence to which he had referred.”

In Harris v Environment Agency [2022] PTSR 1751, which concerned the scope of an EA investigation into damage caused by water abstraction in the Norfolk Broads, Johnson J. analysed regulation 9(3) of the Habitats Regulations as follows:

“82.

Here, the natural and conventional approach to the “have regard” duty is that it means that the Environment Agency is obliged to take account of the requirements of the Habitats Directive but may depart from its requirements if there is good reason to do so. In other words, it must take account of the Habitats Directive but is entitled not itself to discharge all of the requirements of the Directive where that can be justified.

83.

It is, however, relevant (when considering whether a departure can be justified) that the object of the “have regard” duty is “requirements” rather than advice or guidance. Advice or guidance is not, ordinarily, mandatory. “Requirements” more usually are mandatory. The “requirements” are set out, in mandatory terms, in a Directive which the Regulations themselves transposed. In this context, there is not the same broad scope for taking something into account, but then deciding for good reason to depart from it, as there is in the case of non-binding guidance.

84.

There is an important part of the regulatory context which helps explain the different language as between regulations 9(1) and 9(3). Regulation 9(3) is concerned with a “competent authority”. That has a broad meaning (including every public body). In some contexts, different competent authorities may have overlapping roles that are relevant to the discharge of the requirements of the Habitats Directive. In such cases, it would not be meaningful or appropriate to impose on one single competent authority (or on every competent authority) an obligation to secure compliance with the Habitats Directive. Instead, what is required is that all competent authorities have regard to the Habitats Directive so as to ensure that, in the result, compliance with the Directive is achieved.

85.

Conversely, regulation 9(1) is concerned with the Secretary of State and the nature conservation bodies, who each have overarching responsibility for compliance with the Habitats Directive. That seems to me to explain the difference in language. This implies that the duty to “have regard” here does not implicitly permit the Environment Agency to act in way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.

86.

In the present context the Environment Agency is effectively the sole (and certainly the principal) public body that responsible for determining whether abstraction licences should be granted, varied, or revoked. If it does not secure the requirements of article 6(2) in respect of those decisions, then no other public body is capable of filling the gap.

87.

For these reasons, in this context, the duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” considerably narrowed.”

The determination of the Claimant’s appeal under section 78 TCPA 1990 and the approval of the reserved matters application were subject to the requirements of the Habitats Regulations. Under regulation 63, the First Defendant was required to carry out an appropriate assessment to ensure that the Proposal would not adversely affect the integrity of the protected Arun Valley sites. In compliance with regulation 63(3), the First Defendant “had regard to the representations made by Natural England, as the appropriate nature conservation body”. At DL/20, the First Defendant “adopted IR 10.3 – IR 10.114 as the necessary Appropriate Assessment in her role as the Competent Authority on this matter”.

When determining a planning application, a planning decision-maker is entitled to proceed on the basis that other regimes will operate effectively and properly. This is a rebuttable presumption and the decision-maker must make an informed judgment whether and to what extent it applies, depending on the circumstances of the individual case. Furthermore, the Supreme Court held in the recent case of R (Finch) v Surrey County Council [2024] UKSC 20, that the existence of other regulatory controls does not remove the obligation on a planning authority to undertake a full environmental impact assessment (‘EIA’).

The National Planning Policy Framework (December 2023 version) (‘NPPF’), which should now be read in the light of Finch, states at paragraph 194:

“The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.”

The Planning Practice Guidance (‘PPG’) advises at paragraph 016 Reference ID: 34-016-20140306

“Planning for the necessary water supply would normally be addressed through authorities’ strategic policies, which can be reflected in water companies’ water resources management plans Water supply is therefore unlikely to be a consideration for most planning applications. Exceptions might include:

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large developments not identified in plans that are likely to require a large amount of water; and/or

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significant works required to connect the water supply; and/ or

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where a plan requires enhanced water efficiency in new developments as part of a strategy to manage water demand locally and help deliver new development.”

In R (An Taisce) v Secretary of State for Energy and Climate Change [2015] PTSR 189, the Court of Appeal held that, in assessing whether or not a project had likely significant effects for the purposes of the EIA regime, the planning decision maker was “in principle entitled to have regard to the UK nuclear regulatory regime when reaching a conclusion as to the likelihood of nuclear accidents” (at [47]). Sullivan LJ explained, at [48]:

“Many major developments, particularly the kind of projects that are listed in Annex I to the EIA Directive, are not designed to the last detail at the environmental impact assessment stage. There will, almost inevitably in any major project, be gaps and uncertainties as to the detail, and the competent authority will have to form a judgment as to whether those gaps and uncertainties mean that there is a likelihood of significant environmental effects, or whether there is no such likelihood because it can be confident that the remaining details will be addressed in the relevant regulatory regime. In paragraph 38 of his judgment in R(Jones) v Mansfield District Council [2024] 2 P & CR 14, Dyson LJ (as he then was) adopted paragraphs 51 and 52 of the judgment of Richards J. (as he then was) which included the following passage:

“It is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment on the basis of the information available to it and having regard to any gaps in that information and any uncertainties that may exist, as to the likelihood of significant environmental effects. Everything depends on the circumstances of the individual case.””

R (Together against Sizewell C Ltd) v Secretary of State for Energy Security and Net Zero [2023] Env LR 29, was a challenge to the grant of development consent for a power station, including a finding of IROPI under regulation 64 of the Habitats Regulations, when no assured supply of potable water had as yet been identified for the power station by the statutory water undertaker (‘NWL’). The developer had stated that, in the unlikely event that NWL was unable to provide a permanent supply of water, it could develop a permanent desalination plant which would be unlikely to generate any new or materially different significant environmental effects (at [13]).

Holgate J. upheld the Secretary of State’s decision that the provision of the water source was not part of the Sizewell C project for the purposes of the EIA regime or the Habitats Regulations, saying at [90] – [91]:

“90.

I have already summarised the considerations to which the defendant had regard in deciding that the provision by NWL of additional water sources for Suffolk is not part of the Sizewell C project. There is no basis upon which the defendant’s evaluative judgment can be said to be irrational.

91.

.…The need for the supply of utilities such as water is common to many, if not all, forms of development. A utility company’s need to make additional provision so as to be able to supply existing and new customers in the future does not mean that that provision (or its method of delivery) is to be treated as forming part of each new development which will depend upon that supply. The consequence would be that where a new supply has yet to be identified by the relevant utility company, decisions on those development projects would have to be delayed until the company is able to define and decide upon a proposal. That approach would lead to sclerosis in the planning system which it is the objective of the legislation and case law to avoid ….”

In Finch, the Supreme Court allowed an appeal against the grant of planning permission for an oil well on the ground that the local planning authority, by confining its assessment of greenhouse gas emissions to those directly released from the well site, had not complied with the legal requirements of an environmental impact assessment. The Court found, by a majority, that the existence of regulatory controls by other non-planning authorities, did not remove the obligation on the part of the planning authority to fully identify and assess the potential environmental effects.

Lord Leggatt said:

“Other environmental regimes

106 The further reason given by the developer and accepted by the council for confining the assessment to direct GHG emissions from sources within the well site boundary was that the council should not concern itself with emissions that will occur “downstream” when the oil produced from the wells is processed and used because such processes are regulated by other, non-planning regimes and the council “can assume that these regimes will operate effectively to avoid or mitigate the scope for material environmental harm” (see para 36 above).

107 Paragraph 122 of the developer’s environmental statement, which made this argument, quoted from the National Planning Policy Framework (July 2018), paragraph 183, which stated:

“The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. …”

Reference was also made in footnotes to paragraph 122 to the National Planning Practice Guidance, Minerals, para 012, which was in similar terms, and to R (Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin). This case was cited for the proposition that a “local planning authority may consider that matters of regulatory control can be left to a statutory regulatory authority to consider.”

108 It was a clear legal error to regard this aspect of planning policy as a justification for limiting the scope of an EIA. An assumption made for planning purposes that non-planning regimes will operate effectively to avoid or mitigate significant environmental effects does not remove the obligation to identify and assess in the EIA the effects which the planning authority is assuming will be avoided or mitigated. This is clear from a line of authority referred to in the Frack Free Balcombe Residents Association case. In R (Lebus) v South Cambridgeshire District Council [2003] Env LR 17, paras 41–46, Sullivan J held that it is an error of law to reason that no environmental statement is needed because, although a project would otherwise have significant effects on the environment, mitigation measures will render them insignificant. What is required in such a case is an environmental statement setting out the likely significant effects and the measures which can be taken to mitigate them; see also R (Champion) v North Norfolk District Council [2015] 1 WLR 3710, paras 49–51. The same principle must apply in determining the scope of the assessment required where an environmental statement is carried out.

109 As pointed out in those cases, the requirement in the EIA Directive to describe “measures envisaged to avoid, prevent or reduce and, if possible, offset significant adverse effects on the environment” (see para 104 above) implies that the potentially significant environmental impacts of a development should be described together with the measures expected to avoid or reduce them. The public is thereby able to understand the assumption made and to comment on it.”

In National Farmers Union v Herefordshire Council [2025] EWHC 536 (Admin), Lieven J. dismissed a challenge to the lawful scope of a Local Plan policy concerning river pollution. The following passages from her judgment are relevant to the issue in this claim:

“72.

Dr Wolfe submits, both from the evidence of Mr Watson and the wider supporting material for the policy, that the spreading of chicken manure is causing environmental harm, or at the very least is causing the risk of environmental harm.

That is the case despite the fact that there is a regulatory regime in place to protect water quality. It is not necessary to assume that another regulatory regime works effectively when the evidence clearly establishes that it does not do so. He relies on Thornton J’s summary of the relevant approach in Vanbrugh Court Residents’ Association v London Borough of Lambeth [2022] EWHC 1207 (Admin) at [23]:

“[A] local planning authority is entitled to place reliance upon the effective operation of the other regulatory regime(s) in determining an application for planning permission. However, it cannot simply ignore the issues in question. It must assess them sufficiently so as to be able to satisfy itself that the other regulatory regime is capable of regulating the relevant issues. If it is not satisfied, then consent must be refused. The existence of the other regulatory regime is a material planning consideration, to be weighed in the balance. Gateshead MBC v Secretary of State for the Environment 1995 Env. LR 37 at [44] & [49] and R(Bailey) v Secretary of State for Business, Enterprise & Regulatory Reform [2008] EWHC 1257 (Admin) at [13]).”

……

81.

…..It is apparent from the Recitals and Article 13 of the WFD that the overall purpose of the WFD is to reduce and prevent environmental harm. The exclusions to the definition of waste in Article 2(1)(f) is made expressly subject to no harm to the environment. An approach which assumed no environmental harm on the basis of a regulatory regime which beyond any doubt had failed to protect the environment from harm would be contrary to the statutory purpose. I note what is said at [194] of the 2023 NPPF, but to the degree that the LPA in adopting W3 are not assuming that the regimes will operate effectively, there is clear evidence to support their approach. There is therefore good reason, as set out copiously in the documentation, to depart from [194] of the 2023 NPPF.”

Section 37 of the Water Industry Act 1991 (‘WIA 1991’) imposes a duty on every water undertaker to develop and maintain an efficient and economical system of water supply within its area, and to ensure that arrangements are made to make supplies available to persons who demand them, as necessary to secure that they meet their statutory obligations.

Section 45 WIA 1991 provides that it shall be the duty of a water undertaker to make a connection where the owner or occupier of any premises serves notice requiring a supply of water for domestic purposes.

In exercising its statutory functions, a water undertaker is a “competent authority” under the Habitats Regulations and “must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions”: see regulation 9(3) of the Habitats Regulations.

Sections 37A – D WIA 1991 make provision for the preparation and publication of water resources management plans by water undertakers. Such plans are required to be prepared every five years and reviewed annually. They must set out how the undertaker will achieve a secure supply of water for customers, as well as a protected and enhanced environment.

The preparation of water resources management plans is informed by the Water Resources Planning Guideline. The guidance to statutory undertakers includes the following matters:

Chapter II of Part II of the WRA 1991 makes provision for the grant of licences for the abstraction of water, and for licences to be varied or revoked either by the licence holder (section 51) or by the EA (section 52).

In exercising its statutory functions, the EA is a “competent authority” under the Habitats Regulations and “must have regard to the requirements of the Directives so far as they may be affected by the exercise of those functions”: see regulation 9(3) of the Habitats Regulations.

Additionally, decisions in respect of abstraction licences under section 52 WRA 1991 are subject to regulation 63 of the Habitats Regulations: see regulation 102(a) of the Habitats Regulations which refers to the grant of a licence, and also extends to variation or modification of licences, when read with regulation 61(2) of the Habitats Regulations.