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

The claim is in very large part based on criticism of the approach taken in the report to the Committee (“the Officers’ Report”) and in the Habitats Regulation Assessment (“the Appropriate Assessment”) of 2^nd September 2024. The Appropriate Assessment was undertaken by Miss Blackman, in purported performance of the Defendant’s obligations under regulation 63 of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). It will be seen that a number of the grounds turn on questions of the proper reading of those documents and of Miss Blackman’s further note of 15^th October 2024. It will be necessary to analyse those documents and the proceedings at the meeting of the Committee in some detail. In doing so, however, it is important not to lose sight of the way in which such reports are to be considered by the court. The principles were summarized by Lindblom LJ in R (Mansell) v Tonbridge & Malling BC [2017] EWCA Civ 1314, [2019] [PTSR] 1452 at [42], to which summary is to be added the warning of Sir Geoffrey Vos at [62]. Reports are “not to be read with undue rigour but with reasonable benevolence” and with a view to a “fair reading of the report as a whole” and the court should not engage in a “legalistic analysis of the different formulations adopted in a planning officer’s report”. Each of the challenges which turn on the terms of the Officers’ Report and of the Appropriate Assessment will have to be approached against the background of those principles.

In ground 1 the Claimant contends that a number of documents which should have been published were not. Those were documents which the Claimant says were relied upon in formulating the Officers’ Report and the Appropriate Assessment. Accordingly, they should have been published pursuant either to the requirement that the Defendant act fairly towards those who were objecting to the application or to the Defendant’s obligations under section 100D of the Local Government Act 1972. The documents in question were the Concordat, the draft of the September 2024 National Resources Wales Ceibwr Breeding Bird Survey 2024 (“the NRW Draft Report”), and various documents submitted by the Interested Party in support of the application (“the Lobby Documents”). The NRW Draft Report derived from a survey which had also formed the basis for a position statement (“the NRW Position Statement”) which had been published on 30^th August 2024. In the course of the hearing it became apparent that only two of the Lobby Documents were relevant. The first was an email of 10^th July 2024 from the Interested Party’s architect to the Defendant’s Development Management Manager, Kate Attrill, taking the form of a series of questions and answers (“the Q & A Document”). The second was a letter from the Interested Party’s agent which was sent on 15^th October 2024 and uploaded to the Defendant’s website the same day. The Defendant says that there was no breach either of the requirements of fairness or of its obligations under section 100D. It does not accept that either the Concordat or the NRW Draft Report were background documents within the meaning section 100D. Fairness did not, the Defendant says, require those documents to be published in the circumstances here. As to the Lobby Documents the Defendant says that the 15^th October 2024 letter was published the day it arrived and neither fairness nor the section 100D duty required more. The Defendant accepts that the Q & A Document was not published but says that the information contained in it was all apparent from other documents which had been published with the consequence that it was not properly to be seen as a background document for the purposes of section 100D nor did fairness require its publication.

Ground 2 asserts an unlawful failure to have regard to the potential effect of the development on the ACW SSSI. By paragraph 6.4.26 of Planning Policy Wales there is a presumption against development which is not within a SSSI but which is likely to damage the SSSI. The Claimant says that the development had the potential to damage the nesting birds which were a feature of the ACW SSSI. It says that this potential effect was, by reason of the presumption in paragraph 6.4.26, a mandatory relevant consideration. It says that the Defendant should have had regard to this but failed to do so. The Defendant says that the issue was considered in substance because there was consideration of the potential impact on nesting birds.

In ground 3 the Claimant says that, by virtue of the Habitats Regulations, the Defendant was required to impose such conditions on the grant of permission as were adequate to achieve the mitigation measures which the Defendant regarded as necessary. The Claimant then says that the conditions which were imposed were not, in fact, sufficient to achieve that purpose. The Defendant says that when read properly the conditions imposed were sufficient to achieve the necessary mitigation of any adverse impact of the development. As the arguments developed the dispute in respect of this ground became in large part a question of identifying the objective which the Defendant was seeking to achieve and of the extent to which the Transport and Access Management Plan (“the TAMP”) required by condition 20 would be effective to achieve that objective.

The Claimant’s contentions in ground 4 were that the Defendant’s approach to the assessment of the risk of adverse effects flowing from the development was wrong in law, alternatively, that the conclusion reached was irrational. The Claimant says that the Defendant was obliged to ensure that the integrity of the SAC was not adversely affected by the development. In order to ensure this it was necessary to eliminate the risk of such an adverse effect. The Claimant says that, instead, the Defendant’s approach was to proceed on the basis that a degree of risk to a qualifying feature, namely the local grey seal populationwas permissible and that it was sufficient to reduce that risk. This was developed to include the contention that the Defendant wrongly failed to have adequate regard to the local grey seal population in Cardigan Bay and instead approached the matter on the footing that it was sufficient if there was no harm to the wider grey seal population across South West England and Wales. The Defendant says that this ground is based on a misunderstanding of the approach which was in fact taken in the Officers’ Report and, in particular, in the Appropriate Assessment. It says that those documents had proper regard to the risk to the integrity of the SAC and that the view that the risk of the disturbance of individual seals was not a risk to the integrity of the SAC was properly open to the Defendant.

In ground 5 the Claimant says that the Defendant approached the matter on an unlawful or irrational basis by proceeding on the footing that the adverse effects of increased coasteering activity could be balanced by the long-term benefits of increased public appreciation of the special features of the SAC. This ground is founded on criticism of a passage in Miss Blackman’s further note of 15^th October 2024. The Defendant says that the ground fails because the effect of that report has been misunderstood. It says that the Committee was neither advised to engage in such a balancing exercise nor did it do so.

Finally, to the extent that any of the grounds succeed the Defendant invokes section 31(2A) of the Senior Courts Act 1981. It says that relief should be refused because the court can be satisfied that the outcome would not have been substantially different even if the failings had not occurred.