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

The Concordat was referred to in the Officers’ Report at [8.12] and in the Appropriate Assessment in the consideration of the mitigation of the effects on the grey seal population and range.

The reference in the Officers’ Report at [8.12] is not relevant for these purposes although it forms part of the background to the challenge to the conditions advanced in ground 3. For current purposes it suffices to say that the Concordat was only being referred to in [8.12] as an example (“such as”) of the codes from which best practice could be identified.

The Claimant’s argument that the Concordat was a background document relies on the reference made to it in the Appropriate Assessment. The Claimant’s argument is based on three propositions. Mr Wolfe KC structured his submissions more holistically but the contentions amounted to the following chain of propositions. First, that it was the Committee which was making the assessment required by regulation 63 of the Habitats Regulations. Second, that the Appropriate Assessment was a report to the Committee to enable it to make that assessment. Third, that the Concordat was relied on in the preparation of the Appropriate Assessment and was the basis of important parts of that document. There are deficiencies in each of those propositions and that argument based on them cannot be sustained.

It is correct that the Habitats Regulations required the Committee, in deciding whether to grant permission, to ascertain the proposed development would not adversely affect the integrity of the relevant European Site and that the regulations also required the making of an appropriate assessment. It is, however, artificial to read the regulations as meaning that the Committee was itself making the assessment. The proper analysis was explained by Lewis LJ in Bradbury at [62]. The Committee has to reach a conclusion as to the impact of the proposed development on the integrity of the relevant protected site and will do so in light of the assessment but is not itself making the assessment. The approach taken by the defendant national park authority in Bradbury was similar to that taken here. In that case there was an appropriate assessment by a suitably qualified employee of the authority and reference was then made to that assessment in the officers’ report considered by the defendant (see Bradbury at [29]). It is apparent that Lewis LJ regarded that approach as wholly sufficient. I take account of the fact that the argument which Mr Wolfe advanced in his first proposition does not appear to have been raised in Bradbury. I also take account of the fact that it is a legitimate grammatical interpretation of the language of regulation 63. Despite those matters I do not accept that it is the correct interpretation of that provision. First, acceptance of Mr Wolfe’s contention as to the correct approach would mean that the Court of Appeal had through inadvertence treated an impermissible approach as being acceptable. Second, it is an interpretation which is unrealistic when regard is had to the nature of the decision-making process to which regulation 63 is being applied. The correct analysis is that for which Mr Jones contended namely that the exercise in which the Committee was engaged was that of deciding whether or not to grant planning permission. In the context of that exercise the Committee had to take account of the Appropriate Assessment to have regard to the requirements of regulation 63 but it was not itself making the assessment.

The relevant report and that on which the Decision was based was the Officers’ Report not the Appropriate Assessment. This analysis again accords with the approach in Bradbury. The Appropriate Assessment was a background paper to the Officers’ Report and was relied upon for the formulation of section 8 of the latter. The correct analysis becomes clear when the nature of the exercise in which the Committee was engaged is considered. The Committee was not considering the Appropriate Assessment and forming its own assessment of whether the views expressed in that were correct. Instead, it was considering the question of the grant or refusal of planning permission by looking at the overall position in light of the Officers’ Report and the advice set out in that document as to the issues which the officers had identified as being relevant. The summary of the effect of the Appropriate Assessment in the Officers’ Report was an element in that exercise.

It follows that both of the first two propositions in Mr Wolfe’s chain of reasoning fall away. However, even if those were to be established acceptance of the third would still be necessary for the Concordat to be a background document and I do not accept that proposition. This part of ground 1 is dependent on the contention that the Concordat was relied upon to a material extent in preparing the Appropriate Assessment and was the basis either for that document or for an important part thereof. That was not the position. It is correct that in her consideration of that relevant mitigation measures Miss Blackman does make extensive reference to the Concordat. It is also correct that Miss Blackman does say “once the Concordat has been revoked the operator will lose rights to access via the land”. That is the high water mark of the Claimant’s argument but the passage has to be read as a whole and in context. The context is significant because that reference is followed immediately by an acknowledgement that the Defendant has no control over the Concordat and by the proposal for the TAMP and other conditions. Miss Blackman then proceeds to set out the conditions she has in mind. It is to those conditions and not to the Concordat that Miss Blackman is referring when she says “the above mitigation measures will ensure” delivery of the conservation objectives. That part of the Appropriate Assessment could have been expressed more clearly but when it is read as a whole the effect is that Miss Blackman was relying not on the Concordat but on the conditions to be imposed by the Defendant as part of the grant of planning permission.

The Claimant’s contention that the Appropriate Assessment was based on or relied on the Concordat is closely related to its argument in ground 3 that the conditions were not effective to achieve their objective with that objective being seen as giving effect to the Concordat. I will analyse that argument more fully below and it will be seen that in that analysis I do not accept that the object of the conditions was to give effect to the terms of the Concordat.

It follows that the failure to disclose the Concordat was not a breach of section 100D because the Concordat was not a background paper for the purposes of that section.

In addition, there was no material prejudice, and so no unfairness, to the Claimant in the failure to disclose the Concordat. The only benefit to the Claimant of being aware of the terms of the Concordat would have been that it would have been able to make submissions as to the adequacy or otherwise of those terms in protecting the favourable conservation status of the seal population and the related conservation issues. Such submissions would not have been relevant to the Committee’s consideration of this matter. That is because the issue for the Committee was not whether the terms of the Concordat were sufficient to prevent harm to the integrity of the protected site. Rather the issue was whether the conditions which the Committee was to impose were sufficient for that purpose. That follows from the acknowledgement that the Defendant had no control over the Concordat and the decision, as a consequence of that lack of control, to impose, the Defendant’s own TAMP. Submissions as to the adequacy of the TAMP as a way forward were potentially relevant but awareness of the terms of the Concordat would not assist in that exercise.

It follows that this element of ground 1 fails.

I make it clear that if I had concluded that the Concordat was a background paper then I would have rejected the Defendant’s arguments that it was relevant that the National Trust had provided the document to Miss Blackman in confidence and that the document had not been shown to the members of the Committee. The Concordat was not within the category of exempt information for the purposes of section 100I. If it had been relied upon so as to become a background paper then it would have had to be disclosed and neither the fact that it had been disclosed in confidence nor the failure to provide it to members would have altered the position. Indeed, it will often be where a document has not been shown to members that consideration of it by others will be most valuable with a view to mounting a counter-argument as to the correct interpretation of the document or as to the conclusions flowing from it.