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

Reference was made to the NRW Draft Report not only in the Appropriate Assessment but also in the Officers’ Report and at the Committee meeting.

In the Appropriate Assessment Miss Blackman summarized the report in the passage (see [39] above). It is apparent that in that passage Miss Blackman was not simply quoting the NRW Position Statement but was summarising the draft report. In the Officers’ Report at [8.16] (see [32] above) it was expressly said that the NRW Draft Report “informs the conclusion on the potential impacts of the proposal”. Finally, at the Committee meeting the officers made further reference to the NRW Draft Report (see [51] and [52] above) as a potent factor operating in favour of the proposal.

It follows that the NRW Draft Report was relied on in the advice to the members of the Committee. It formed a significant part of the rationale for the assessment that the proposed development did create a risk of harm to the integrity of the SAC. There is no indication that any officer of the Defendant applied his or her mind to the question of whether it was a background paper for the purpose of section 100D but the only rational conclusion would be that it was relied on the preparation of the Officers’ Report and contained matters on which an important part of that report was based. As such it was a background paper.

The Defendant contended that the NRW Draft Report was not a background paper because it had been provided to Miss Blackman in confidence unlike the NRW Position Statement which was a public document. That does not advance matters. I will address the Defendant’s argument in this regard more fully in my consideration of the Concordat below but the short point is that even though provided in confidence the report remained a background paper unless it fell within the exceptions in the Local Government Act which it did not.

In addition, Mr Jones sought to argue that the NRW Draft Report was background to the Appropriate Assessment but not to the Officers’ Report with the Appropriate Assessment being a background paper for that report. That argument might have had some force but for the emphasis placed directly on the NRW Draft Report in the Officers’ Report itself and in the advice given at the Committee meeting. The NRW Draft Report was being advanced as a factor which members should regard as standing in favour of the proposed development in its own right.

The question, therefore, becomes one of whether the failure to publish the NRW Draft Report caused significant or material prejudice to the Claimant. This runs alongside the consideration of whether there was unfairness in the failure to disclose the report and whether this vitiated the Decision. It is to be noted that the NRW Position Statement had been published and so the Claimant was in a position to comment on that. I am satisfied that there was such prejudice. In his witness statement at [37] and following Dr Mark Avery sets out a critique of the methodology of the survey and of the soundness of the conclusions drawn from it in the NRW Draft Report. He criticizes the timing and duration of the survey; he challenges the conclusion drawn from the high success of the Herring Gull population in Ceibwr Bay; and criticizes the failure to have regard to the report of Dr Thomas in respect of the potential impact on nesting seabirds. Those are points which are potentially significant. They are not necessarily “knock out blows” but they do call for answer and cast doubt on the weight which can be placed on the NRW Draft Report. Those are points which could have been made if the report had been disclosed. The failure to disclose the report and the Claimant’s consequent inability to raise those points is a material prejudice.

The fact that the NRW Position Statement had been published does not detract from this argument. The position statement was in short terms. It is to be noted that it does state the timing and duration of the survey but it is unrealistic to think that a critique of the kind foreshadowed by Dr Avery could have been mounted solely on the basis of the position statement.

Similarly, the fact that Miss Blackman summarized the NRW Draft Report in the Appropriate Assessment does not alter the position. That summary was in short terms and did not provide the information which was needed to identify those matters which the Claimant contends were flaws in the survey and report. It was necessary for the Claimant to have sight of the report in order to be able to contend that it should not bear the weight which the Defendant placed on it.

This element of ground 1 is, accordingly, established. I will consider below the extent to which section 31(2A) precludes relief.