AC-2024-CDF-00018 - [2025] EWHC 2249 (Admin)

The position, therefore, is that there was no public law failing in respect of the failure to disclose the Concordat and the Lobby Documents but the failure to disclose the NRW Draft Report was a breach of the requirements of fairness and of section 100D.

The Claimant contends that the potential impact on the ACW SSSI was a mandatory relevant consideration which should have been addressed but which was not. I will address below the Defendant’s subsidiary argument that the duty to consider that potential impact was not engaged in the circumstances of this case. The principal argument advanced by Mr Jones was, however, that the potential impact had been considered in substance.

The potential impact on the ACW SSSI was a mandatory relevant consideration. There was no doubt that the activities organised by the Interested Party would take place in the area of the SSSI. As noted above paragraph 6.4.26 of PPW 12 provided that there was a presumption against development outside a SSSI but which was likely to damage it and that in such cases the proposals were to be “carefully assessed to ensure that effects on those nature conservation interests which the designation is intended to protect are clearly understood”. The attention of the members of the Committee should have been drawn in terms to that requirement and should have been advised to consider the argument that there would be an adverse impact on the ACW SSSI in the light of that requirement. I remind myself that the advice given to the members has to be read in accordance with the approach laid down in R (Mansell) v Tonbridge & Malling BC and that the court is to look to substance not form. If in substance the members were correctly advised as to the test to be applied and the approach they were to take then the failure to inform them that the source of the requirement was PPW 12 or to set out the express words of the requirement would not be fatal. However, in light of the matters to which I will now turn it is apparent that, even when the advice given is read without undue rigour, there was no proper consideration of this issue.

The only reference to the ACW SSSI in the advice given to the members was one slide in the power point presentation which showed the boundaries of the SSSI. The members were not expressly referred to the special features of the ACW SSSI nor to the presumption in paragraph 6.4.26 of PPW 12 nor to the requirement there for a careful assessment. There is nothing in the advice which was given which can properly be seen as covering the same ground in substance without such express reference.

The references in the Appropriate Assessment to choughs are solely in the context of the potential impact on the Skomer, Skokholm and Seas off Pembrokeshire SPA and of the Ramsey and St David’s Peninsula Coast SPA (see [38] above) and in each case it was said that there was no impact because those were 50km away.

Reference was made to birds in the Officers’ Report at [8.9] and [8.16] but in each case the focus was on auks and by reference to the Cardigan Bay SAC. [8.16] concluded with the words “nesting birds are however, not a designated feature of the SAC under consideration”. This came close to being advice that the members need have no regard to the potential impact on birds. Certainly, it was far from alerting them to the substance of the requirements of PPW 12 at paragraph 6.4.26.

As I have explained at [43] above on 11^th October 2024 the Claimant wrote to the Defendant objecting to the proposal. In the letter and the accompanying report the Claimant referred in terms to the potential impact on the ACW SSSI and on the chough population. Despite that highlighting of the question the advice given at the Committee meeting did not deal with these matters directly. I have set out at [50] above the essence of the power point slide which dealt with “Environment Act duties” and which did refer to choughs. It will be seen that the reference was in general terms and informing the Committee of the duty to “consider impacts on habitats and species” was not equivalent to informing the members of the more focused requirements of PPW 12. I have set out at [47] the reference which Miss Blackman to choughs in her further note. This added little to the power point slide and by saying that choughs were not a feature of the relevant SAC it tended to suggest that they were a feature of lesser importance.

Proper consideration of the requirements of PPW 12 and of the ACW SSSI required the Committee to be alerted to the fact that choughs were a feature of a relevant protected site; to be informed of the presumption against development which would have an impact on such a feature; and of the need for a careful assessment of whether there was such an impact. Not only was this not done expressly but such references as there were in the advice to members did not amount to consideration of the same in substance. It follows that if the consideration was engaged it was not addressed.

The Defendant’s subsidiary argument that the consideration was not engaged can be addressed shortly. Mr Jones contended that PPW 12 at 6.4.26 did not come into play in the circumstances here because chough were not currently nesting in the potentially affected area. That does not advance matters. There was clearly potential for nesting by chough and the relevant area was within the ACW SSSI of which they were a feature. There is force in the point which was made in the Claimant’s letter of objection that account was to be taken of this. The position might have been different if a deliberate decision had been taken mindful of the terms of PPW 12 and the nature of the ACW SSSI that the policy was not engaged in the particular circumstances here. If rationally justifiable such a decision would have obviated the need for further consideration. That was not the position and there was no proper consideration of the applicability of the approach laid down by paragraph 6.4.26 of PPW 12.

It follows that there was a failure to have regard to a mandatory relevant consideration and this ground is established. I will consider below the extent to which section 31(2A) precludes relief.

A grant of planning permission can be subject to conditions imposed with a view to addressing a particular objection to a proposed development or to securing a particular objective the achievement of which is necessary for the development to be acceptable. Such a condition must be “adequate” to the “standard of rationality” (per Sales J as he then was in Leeds CC v Secretary of State for Communities and Local Government [2009] EWHC 1014 (Admin) at [35]) or “reasonably suitable” (Fordham J’s articulation of the same test in R (Caffyn) v Shropshire Council [2025] EWHC 1497 (Admin) at [33]) to achieve that objective. Where conditions are necessary to render a development acceptable then if the conditions are unlawful or not rationally sufficient to achieve that objective the permission will fall with the conditions (Pyx Granite v Ministry of Housing and Local Government [1958] 1 QB 554 at 579.

Mr Wolfe contended that the effect of the decision of the CJEU in Holohan v An Bord Pleanála [2019] PTSR 1054 was to impose a higher requirement in cases where the relevant objective was the protection of the integrity of a European site. He submitted that in such a case there had to be certainty that the condition or conditions in question would achieve that objective and that it was not sufficient for there to be a condition providing for significant matters to be determined later. I do not accept that this is the effect of Holohan. The decision there is not expressed in terms of the rationality test but amounted to a conclusion that on the facts of the particular case it was not open to the defendant authority to conclude that leaving important details to be determined later was sufficient protection. The decision was made in relation to a case where it was possible for significant matters to be “determined unilaterally by the developer and merely notified to that authority”. The judgment is to be seen in the light of those facts and was not the articulation of a higher requirement in cases concerning the integrity of European sites. Nor was it a statement that as a matter of principle it can never be appropriate for there to be a requirement for details to be determined at a later stage. The crucial factor in that case was the authority’s lack of control over those details.

The Claimant contended that condition 17 was unlawful because it was a personal condition which was not permissible in circumstances where the benefit of planning permission runs with the land. The Defendant said that the condition was lawful in circumstances where personal conditions are permissible but are discouraged. However, Mr Jones accepted that the condition could have been better worded and did not seek to place any real reliance on it.

I am satisfied that condition 17 was lawful. In short, it is lawful for there to be a personal condition otherwise there would be no need for the PPG Guidance on which the Claimant relied to say that such conditions would normally be inappropriate. However, the arguments about the adequacy and lawfulness of conditions 16 and 17 are peripheral and not determinative of this ground. The Defendant rightly accepted that those conditions amounted to supplements to condition 20 and that if condition 20 standing by itself was not adequate to achieve the objective of protecting the integrity of the SAC then the presence of conditions 16 and 17 would not remedy the inadequacy. Conversely, if condition 20 standing alone was adequate to achieve the objective then any insufficiency in conditions 16 and 17 would not render it inadequate or vitiate the Decision.

I turn, therefore, to condition 20. The question is whether it was rationally open to the Defendant to conclude that the condition was effective to achieve its objective.

The Claimant’s attack on the adequacy of condition 20 is based on the contention that the Defendant was proceeding on the basis that the incorporation of the provisions of the Concordat and of the Marine Code was necessary to ensure the integrity of the SAC; that the conditions were seeking to incorporate those provisions; and that they were ineffective to do so. That attack is based on a fundamental misreading of the objective which the conditions, and in particular condition 20, were seeking to achieve. It places too much weight on the reason given for condition 17 without having sufficient regard to the terms of Officers’ Report and the reason given for condition 20.

Paragraph 8.12 of Officers’ Report is significant in this regard. That is not saying that the purpose of the TAMP is to incorporate the provisions of the Concordat or the Marine Code. Instead, it is saying that the purpose is to incorporate best practices of which the Concordat and the Marine Code are illustrations. The same analysis follows from a proper reading of the Appropriate Assessment where, as I explained above, Miss Blackman’s reference to the mitigation measures is to the TAMP and not to the terms of the Concordat. The point is made even more clearly when regard is had to the reason given for condition 20. That refers in terms to the legislation imposing the obligation on the Defendant to ensure that the development did not harm the integrity of the SAC.

The purpose of condition 20 was not the incorporation of the terms of the Concordat or the Marine Code. It follows that any failure to achieve that objective was not a deficiency in the condition. Rather the objective was to ensure that the activities carried out from the Site did not harm the integrity of the SAC by imposing a control on the way in which those activities were to be conducted. Was it rationally open to the Defendant to conclude that the condition would achieve that objective? The answer depends on whether the Defendant was entitled to conclude that the drawing up of the TAMP and requiring compliance with it would suffice. In my judgement such a conclusion was well within the range of those rationally open to the Defendant. The Marine Code was a publicly available document and the terms of the Concordat were available to the Defendant but more significant the Defendant was in a position to form a view from its own resources as to what best practice required and as to the ways in which the activity should be undertaken to ensure the integrity of the SAC was not harmed. It would be possible for the Defendant’s view on what was required to differ from that of the National Trust. As Judge Jarman said in refusing permission “condition 20 enables the Defendant to enforce provisions required to maintain and enhance biodiversity whatever other bodies may or may not do”. The fact that the terms of the TAMP were not known at the time of the Decision does not alter the position. The TAMP was to be submitted to the Defendant as local planning authority for its approval. The Defendant was entitled to proceed on the basis that it would not approve proposals unless they accorded with best practice and were sufficient to prevent harm to the integrity of the SAC.

This ground, therefore, fails.

The Claimant and the Defendant were agreed that regulation 63(5) of the Habitats Regulations required that planning permission could only be given if the Defendant was satisfied that the development would not adversely affect the integrity of the protected site.

It was also common ground that regulation 63(5) imposed a high standard and that the Defendant had to be certain that there would not be an adverse effect on a protected site’s integrity. That was a consequence of the applicability of the approach laid down in Sweetman v An Bord Plenála [2014] PTSR 1092 at [40] and following and in Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174, [2015] PTSR 1417 at [61] and [83]. However, the standard of review remains that of rationality. The relevant planning authority must approach the test in the correct way and in accord with regulation 63 but providing that it does then its conclusion that there was or was not a risk of harm to the relevant site’s integrity can only be challenged if it is irrational: R (Wyatt) v Fareham BC [2022] EWCA Civ 983, [2023] PTSR 1952 per Sir Keith Lindblom SPT at [9].

It follows that the issue to be considered in relation to ground 4 is whether the Defendant applied the correct approach and whether the conclusion reached was rational. In reality, the Claimant’s challenge was concerned with the first of those elements with the Claimant saying that the Defendant approached matters on the wrong basis. It is said that the approach taken was flawed in two respects namely in regarding some harm to the protected site’s integrity as acceptable and in failing to treat the range and population of the grey seal population of Cardigan Bay as the relevant qualifying feature harm to which must be prevented. The outcome of this ground turns, therefore, on the correct interpretation of the Officers’ Report, the Appropriate Assessment, Miss Blackman’s further note, and the advice given orally at the meeting of the Committee. Those must be considered as a whole and in context having regard to the approach laid down in R (Mansell) v Tonbridge & Malling BC.

When the documents are read in the correct way it is clear that the correct approach was being taken. The material made it clear that the officers, and in particular Miss Blackman, were assessing whether there was a risk to the integrity of the protected site. There were references to reducing the risk of disturbance to individual seals. This was on the basis that if the risk of such disturbance was reduced then there would be no harm to the integrity of the protected site. It was based on the view that disturbance of individual seals would not harm the range and population of the qualifying feature (the grey seal population) provided that the disturbance was minimised. The fact that the correct approach was being taken is apparent because it was implicit in the need to reduce the risk of disturbance of individual seals that if that risk was not reduced there would be harm to the range and population with a consequent harm to the protected site’s integrity. The reports were not saying that harm to that integrity was acceptable provided it was at a reduced level.

The artificiality of the Claimant’s reading of the reports is shown by the fact that it accepts that the lengthy second sentence of the paragraph beginning “notwithstanding the above…” quoted at [42] above sets out the correct test but then says that is undermined by other parts of the Appropriate Assessment and Miss Blackman’s further note. The converse is the correct position. That passage illustrates the approach which Miss Blackman was taking and sets the context in which the other remarks are to be read. That paragraph is also of note because the use of “notwithstanding” makes it clear that having referred to the seal population of South West Wales and England Miss Blackman was turning back to consider the population of the protected site and the need to protect the integrity of that site.

The correct approach was, therefore, applied and the conclusion reached was well within the range of conclusions rationally open to the Defendant. It was rational to say that the disturbance of individual seals was not of itself a matter impacting on the integrity of the site. It was a matter of degree and it was open to the Defendant to conclude that provided the risk of disturbance was minimised there would be no risk of harm to the relevant integrity.

This ground, accordingly, fails.

This ground is based on the passage in Miss Blackman’s further note beginning “I would also like …” as quoted above. The Claimant says that this amounted to advising the Committee that the risk of harm to the integrity of the SAC was to be balanced against other matters (and in particular the benefits derived from greater public knowledge) with it being acceptable for there to be a risk of such harm provided it was outweighed by the other considerations.

If Miss Blackman’s comments are to be read in the way the Claimant asserts then the Committee was given incorrect advice and are to be taken as having proceeded on a false basis. Conversely, if Miss Blackman’s comments are to be read as indicating that public involvement is a potential benefit which can be taken into account in circumstances where there is no risk of harm to the integrity of the SAC then there was no public law error. Saying that greater public involvement was a potential benefit in such circumstances was not really contentious and I note that a similar point was made in the NRW Draft Report in section 4.3.

The comments are to be read in context having regard not just to the balance of the further note but also to the Appropriate Assessment and keeping in mind the approach laid down in R (Mansell) v Tonbridge & Malling BC. When that is done it is clear that the Claimant’s interpretation is incorrect. Miss Blackman made it clear that it was her view that there was no threat to the integrity of the SAC. In doing so she emphasized her assessment that the risk of the disturbance of individual seals did not amount to a risk of harm to the favourable conservation status of the SAC. It is clear that Miss Blackman’s judgement on those aspects of the matter was made by reference to the potential impact of the activities on the SAC and that she was not saying that there was harm against which the benefit of greater involvement could be balanced. The passage on which the Claimant relies was not introducing a different test by a side route and the Claimant’s reading of it is inconsistent with the thrust of the comments in the further note and the contents of the Appropriate Assessment.

It follows that the Committee was not misled into applying an incorrect approach in this respect and this ground fails.