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

The Officers’ Report explained that the application was being presented to the Committee because of opposition from the Community Council. In the opening summary it was said that the application had been subject to an assessment for the purposes of the Habitats Regulations and, subject to the imposition of conditions, was “considered acceptable in terms of the Cardigan Bay Special Area of Conservation”. In that regard the report said “the assessment of potential impacts on biodiversity has been informed by a draft survey undertaken by Natural Resources Wales which has been shared with the PCNPA Ecologist”. The summary went on to record the officers’ view that the proposed development accorded with the relevant national and local planning policies.

The Officers’ Report listed the relevant Local Development Plan policies and included LDP policy 11 and PPW 12 in that list. The terms of those policies were not set out there or elsewhere in the Officers’ Report. The report did say that the policies could be viewed on the relevant page of the Defendant’s website though it is not clear whether that was a reference just to the LDP policies or also included PPW 12.

The report then described the Site and the proposal. It identified issues raised by the application including the policy and principle of development and “biodiversity and landscaping”. The terms of various policies were recited or paraphrased and at paragraph 4.3 the report said:

“4.3

Policy 1 of the Pembrokeshire Coast National Park Local Development Plan 2 (LDP2) sets out the National Park’s purposes and duty, in order to ensure that development within the Park is compatible with these. Proposals within a countryside location need to demonstrate that they are essential in order to evidence that they comply with the conservation element of the National Park’s purposes. Matters of ecology and potential biodiversity impacts are also critical in understanding whether or not a proposal complies with the National Park purposes. Biodiversity matters are assessed in greater detail below.”

At paragraph 4.9 and following, the report noted that the approval of the development would allow the continued operation of an existing business.

Paragraph 8 of the report addressed “Biodiversity & Landscaping/Green Infrastructure”. At paragraph 8.1 and 8.2 it said:

“8.1

PPW, TAN5 and LDP Policy 11 require biodiversity considerations to be taken into account in determining individual applications. The presence of a species protected under UK or European legislation is a material consideration when dealing with applications that are likely to result in disturbance or harm to the species or its habitat.

8.2

In order to comply with Planning Policy Wales (2024) and the Environment (Wales) Act 2016, planning authorities are expected to ensure every development positively contributes to biodiversity. Indeed, Planning Policy Wales 12 states that all development must result in a net benefit for biodiversity. Edition 12 of PPW also required that all application must be accompanied by a Green Infrastructure Statement and that this must show the step-wise approach has been followed.”

At paragraph 8.5 the public concern was noted in these terms:

“8.5

Considerable public concern has been raised in terms of the potential for this application to contribute to a perceived level of disturbance at Ceibwr which borders the Cardigan Bay Special Area of Conservation.”

The report addressed the Appropriate Assessment and the approach to be taken to the Habitats Regulations at paragraphs 8.6 to 8.15 in these terms:

The report then addressed the Defendant’s duty under section 6 of the Environment (Wales) Act 2016 and set out the officers’ conclusions in respect of that and the Habitats Regulations at paragraphs 8.16 – 8.18 as follows:

“8.16

In addition to the Habitats Regulation requirements the Local Planning Authority is separately required to consider its duty under the Environment (Wales) Act 2016. Section 6 of this Act states that public authorities that exercise their functions in relation to Wales have a duty to maintain and enhance biodiversity and promote the resilience of ecosystems. The Authority still has a duty to consider potential impacts on nesting Auks habitat through the Environment (Wales) Act. There has been a recent study by an accredited Ecological surveyor commissioned by NRW on the disturbance levels experienced as a result of the coasteering activities at Ceibwr Bay. A copy of the draft report has been considered and informs the conclusion on potential impacts of the proposal, whilst the formal report has not yet been released by NRW. This recent study focused on the potential harm to nesting birds and concluded that there was not a significant risk from coasteering to the species studied who are increasing in number at other known sites.

8.17

Officers in discussion with the PCNPA Ecologist are content that the conditions, including that requiring an Access Management Plan to be submitted annually, alongside the other specific onsite measures relating to biodiversity provide a suitable mechanism to ensure that wider biodiversity is maintained and enhanced.

8.18

Subject to appropriate conditions to ensure that the biodiversity enhancements proposed with the scheme are delivered and maintained appropriately; that an appropriate access management plan is put in place and that any future external lighting is controlled, overall, the proposed development is considered acceptable in terms of its impact on biodiversity and as such is considered to comply with Policy 11 of the LDP, the requirements of the Habitats Regulations and the Environment (Wales) Act 2016.”

At paragraph 10.3 the report concluded with the officers’ assessment that subject to the imposition of conditions the proposed development was considered to “comply with relevant national and local planning policies”.

It is to be noted that there was no reference in the Officers’ Report to the ACW SSSI and that, although reference was made to PPW 12, the attention of members was not drawn to the terms of paragraphs 6.4.24 and following of that policy.

In the Appropriate Assessment Miss Blackman adopted the two-stage process required by the Habitats Regulations. The first stage was to screen the proposed development to see if it had the potential to cause a significant effect on a European Site.Having concluded that the development had such potential Miss Blackman went on to make an appropriate assessment.

Miss Blackman identified the relevant European Sites as being the Cardigan Bay SAC, the West Wales Marine SAC, and the Skomer, Skokholm and Seas off Pembrokeshire SPA. In the body of the report Miss Blackman also considered the potential impact on the Ramsey and St David’s Peninsula Coast SPA. She made no reference to the ACW SSSI. Miss Blackman proceeded on the precautionary basis that there would be a significant increase in activity if the development were to proceed. However, she regarded the fact that there was an existing level of activity as a relevant consideration.

Addressing the Cardigan Bay SAC, Miss Blackman identified the grey seal population as a qualifying feature upon which the development had the potential for a significant effect. She said that increased coasteering activity might result in “an increase in disturbance to known seal pupping beaches” including those at Ceibwr Bay. She then said:

“Both the range (in terms of viable seal pupping locations free from disturbance) and populations (where disturbed seals and pups could be put at risk if disturbed) could therefore be impacted if measures are not put in place to reduce this risk.”

Miss Blackman identified the chough populations as qualifying features of both the Skomer, Skokholm and Seas off Pembrokeshire SPA and of the Ramsey and St David’s Peninsula Coast SPA. Her assessment in relation to those populations was in identical terms, namely that there was no potential for a significant effect, saying, in respect of the former SPA:

“Although species may be present in close proximity to activities associated with the planning application, as the SPA is almost 50km away, it is not considered that individual Chough or their nests close to Ceibwr bay would be connected to or fundamental to the population size of the Skomer, Skokholm and Seas off Pembrokeshire SPA. For the above reason, impacts upon the SPA for this feature can be screened out and will not proceed to Appropriate Assessment.”

Miss Blackman identified the population of a combined assemblage of sea birds as a qualifying feature of the Skomer, Skokholm and Seas off Pembrokeshire SPA. She said that because the SPA was 50km away the colony of auks close to Ceibwr Bay could not be regarded as “connected to or fundamental to the population size of the [SPA] assemblage”. Miss Blackman then referred to the NRW Position Statement. She said that the position statement explained that a survey had been carried out. Miss Blackman then noted that:

“The survey concluded that no evidence was found to suggest that the breeding success of seabirds was affected by coasteering group activities, although some actions observed that had the potential to be detrimental.”

Miss Blackman concluded the first stage of the assessment by saying that “there are no other European Sites within the wider vicinity of the development with features relevant to this location and planning application”. She then proceeded to the second stage of making an appropriate assessment of the impact of the development on the conservation objectives of the Cardigan Bay SAC. At stage 2a of that assessment Miss Blackman said that the relevant feature of the SAC was the grey seal population and its range. Miss Blackman identified the potential impact as being increased levels of disturbance through greater use of Ceibwr Bay. She set out mitigation measures and then said that as a result of the mitigation measures there would be no significant effect on the conservation objectives subject to conditions. That passage was as follows:

“The existing operation must cross National Trust land in order to undertake their None – disturbance as a result of coasteering activities. The National Trust restrict access for such activity unless subject to Range the hub building providing the business is signed up to adherence to their Concordat. The Concordat was conditions written to safeguard the long-term use of National Trust land in Pembrokeshire increased opportunity for and balance the use with the wider environment by outdoor group activities. The more groups able to use Concordat applies to commercial coasteering activity providers and sets out a Ceibwr bay for outdoor code of conduct expected by all providers which includes measures to protect the activities. natural environment through the avoidance of wildlife disturbance (details are within the Concordat which is not a publicly available document). The Concordat includes specific measures associated with Ceibwr bay and the relevant operator to this application has agreed that they will not use the areas outlined within the relevant document (confidential) between 1st August and 30th November each year to prevent impact on seals and their pups.

The operator is currently signed up to the concordat and must remain so in order to access through National Trust land. If the Concordat is breached the following course of action is taken by the National Trust:

1st breach – Verbal response to remind operators of obligations under the code and ask them to modify conduct accordingly

2nd breach – written warning

3rd breach – if no action taken by provider access under the concordat is revoked.

Once the Concordat has been revoked the operator will lose rights to access via the land and therefore would be unable to operate form the area. This helps to provide confidence that impacts from the development will be kept to minimum and the National Trust as the owner of the Concordat are responsible for ensuring compliance and will otherwise revoke access. It is acknowledged that the Authority has no control under the Concordat and that it only applies to coasteering activity and not other outdoor activities including kayaking, climbing etc. The Authority therefore recommends imposing a condition to agree an access plan with the applicant to seek to manage access for all outdoor activities in a way that minimises impact on pupping seals, including restrictions on and requirements as to how access may be undertaken if pupping seals are present in Ceibwr bay while access is taken.

In addition to the Coasteering Concordat, Pembrokeshire also operates a voluntary Marine Code which highlights Agreed Access Restrictions drawn up by conservation experts and coastal users. This Marine Code would be particularly applicable for kayaking. This includes limits on landing times on pupping beaches and keeping a minimum distance of 50 metres from seals in the water unless they approach an individual. As with the Concordat, this could be implemented by including appropriate elements in an Access Plan required by a planning condition. The Pembrokeshire Marine Code is available here: Pembrokeshire Marine Code.

In order to ensure there is no large increase in the number of operators able to operate out of Ceibwr above existing levels, the new hub must only be available for use by the relevant operator associated this planning application. An appropriate condition will be added to any consent to secure this.

To ensure customers are aware of the marine code and potential impacts upon wildlife as a result of coasteering activities, information boards must be erected on the front elevation of the main hub building. The information boards must include details of the Pembrokeshire Marine Code, details the Cardigan Bay SAC, information on wildlife likely to be encountered during outdoor activities in the area and what is considered disturbance to these species and details. Again, this will be secured via condition of any consent and will provide further confidence that disturbance impacts from the operations associated with the building will be kept to a minimum as far as possible.

The above mitigation measures will ensure that NRW’s Conservation Objectives and vision for the Cardigan Bay Special Area of Conservation (SAC) are able to be delivered.”

Miss Blackman then turned to stage 2b which she began with a rehearsal of the definition of a site’s integrity as set out in the HRA Handbook namely:

“the coherence of its ecological structure and function across its whole area, that enables it to sustain the habitat, complex of habitats and/or levels of population of the species for which the site is (or will be) designated for.”

Miss Blackman listed existing risks to the conservation feature (namely the grey seal population) and included “disturbance causing reduction in pupping success” as one such risk. She then considered whether, following the mitigation measures already discussed, the proposed development would exacerbate or contribute to the identified risks. She concluded that it would not. Miss Blackman set out her reasoning thus:

“Following mitigation discussed in Section 2a, would the proposal exacerbate or contribute to the identified threats and risks?

Only disturbance has been identified as having the potential to impact grey seal in association with this application as all other existing known threats and risks to grey seal are not relevant...

...Disturbance can include: displacement, collision and noise & visual disturbance.

Education awareness and activity surveillance are indicated as the most likely required actions.

There is no suggestion in NRW’s package of information published under section 37 of the Habitats Regulations that these activities can cause a reduction in pupping success, but it remains a possibility. It should be noted that most the important pupping beeches, caves and Haul-out sites occur in Pembrokeshire, grey seals are known to range throughout Cardigan Bay and there are a significant number of pupping sites in south western Ceredigion. The population associated with the Cardigan bay SAC is not isolated a nd due to the known movements of grey seals in Pembrokeshire and Ceredigion is considered that the individuals within the Cardigan bay SAC are park of the South West Wales and England wider population. In a more local context, the population size in South West Wales is estimated to be approximately 5000 individuals. Pup production within the Cardigan Bay site therefore represent only a small proportion of the South-west Wales production. With the above in mind when considering ‘the coherence of its ecological structure and function across its whole area, that enables it to sustain the habitat, complex of habitats and/or levels of population of the species for which the site is (or will be) designated for’, although some disturbance to individual seals cannot be completely ruled out, the significance of the impact of this at a population scale and the ability of the feature to continue to function at a sustainable level, it is not considered that the outcome would be significant to either of these factors.

Notwithstanding the above and the baseline situation, because of the potential for increased levels of outdoor activity and the potential for disturbance impacts upon individual seals, measures must be put in place to reduce these impacts from outdoor activity groups associated with the proposal, including through the Concordat and via relevant conditions. With such measures it is considered, on a site specific basis taking into account the likely levels of activity to Ceibwr bay through the proposal that the activity can be managed in such a way that there will be no possible effects on the site’s conservation objectives, accordingly the proposal will not adversely affect the integrity of the coherence of the sites ecological structure and function, across its whole area, that enables it to sustain the habitat, complex of habitats and/or the levels of populations of the species for which it was classified In short, these measures will ensure that there is no impact on the integrity of the SAC.

Following the above assessment, is it considered necessary to undertake an in combination assessment to determine if potential effects arising from the current proposal will have in combination effects with other plans or projects.”

On 11^th October 2024 the Claimant’s solicitors wrote to the Defendant objecting to the application and criticizing the approach taken in the Appropriate Assessment. The letter annexed a report of 6^th October 2024 from Ian Carter. The report and the letter made reference to the ACW SSSI. In respect of the Appropriate Assessment’s conclusions about the grey seal population, the Claimant said that the mitigation measures proposed were flawed because they were intended only to reduce the risk of an impact on the seal range and population rather than to eliminate that risk. It was also said that the measures proposed were inadequate even to reduce the risk. In the report this was said to be because of their reliance on the Concordat and in the letter because there was no mechanism for limiting the level of activity. Reference was also made to the relevance of peregrines and choughs. That was expressed by reference to the ACW SSSI and this was said at paragraph 16 of the letter:

“It is noted that peregrine and chough do not currently breed at the site, but do breed nearby and suitable breeding habitat exists within Ceibwr Bay where the increased activities are proposed to take place. It is noted that chough are also a feature of the SSSI, and according to the SSSI management statement the chough population `should contribute towards maintaining the West Wales chough population’. PCNPA should take steps now to factor in the potential for these species to nest at the site as part of its decision-making. If these birds do choose to nest at the site, or where the activities will take place, access to these areas should be strictly restricted and provisions to enforce these restrictions should be in place as part of any permission decision.”

In response to those criticisms Miss Blackman prepared a further note dated 15^th October 2024. This was read out at the Committee meeting where Miss Blackman also responded to comments from members of the Committee.

In that note Miss Blackman noted that the grey seals present in Cardigan Bay did not form a discrete population but were part of the wider population of South-West England and Wales. She then said:

“When considering the objectives of the FCS and in particular the requirement for … “data on the species concerned indicates that it is maintaining itself on a long term basis as a viable component of its natural habitat(s)” in relation to this application, the question must be asked whether or not this proposal will adversely affect the ability of the SAC feature to meet its FCS and the aforementioned objective. It is acknowledged that an individual seals may pup on the beach at Ceibwr and nearby bays used by the activity provider, however the potential to disturbance is limited to these individuals alone. Taking into account the population as a whole and the level at which this potential disturbance would impact it, it cannot be concluded that the ability for the population to maintain itself will be compromised based on disturbance to a very few individuals. In short, individual disturbance does not equate to an adverse impact upon FCS or an adverse impact on integrity of the SAC.”

Having said that Miss Blackman added:

“That being said, as discussed within the HRA and the subsequent planning condition recommendations, measures can be put in place to reduce the possibility of disturbance impacts upon individual seals using the area and these will eliminate possibility of impact on the FCS of grey seal and eliminate any possibility of impact on the integrity of the SAC.”

Addressing choughs and peregrines Miss Blackman said that those were not “features of the SAC at Ceibwr” but that there was a duty under the Environment (Wales) Act 2016 to consider impacts. She said that those birds were not currently present in the areas potentially affected by the coasteering activities but accepted that there was a possibility that they could nest there in the future. She said that if that were to happen the provision for annual revision of the TAMP could be used to introduce any necessary protection measures.

Miss Blackman pointed out that the TAMP would allow numbers engaged in the activities to be controlled and as such would give scope for better management of the activities than was currently the position.

Miss Blackman concluded her further note with the following “other points to note”:

“It should be noted that both the HRA and my responses to comments are made using my local expert knowledge and where necessary, in consultation with a network of experts who also have local knowledge of the relevant protected sites and species. I am in no doubt as to the extent of potential impacts and the ability to maintain FCS of the SAC Species, or the ability to comply with Environment (Wales) Act duties. Much has been made of the precautionary principle in representations which applies in circumstances of scientific doubt, but that is not the case here.

I would also like to make the point of the overarching benefits of wildlife tourism for nature and biodiversity. For biodiversity to remain high on the agenda of importance, the general population must continue to be engaged with nature and enthused about Pembrokeshire’s special qualities and unique ecology. Interactions with nature can come in many forms, but for many, particularly those who do not have prior experience or indeed, the opportunity, to be in and close to nature, the connections arising from outdoor activities such as coasteering can be invaluable and for some, the start of a meaningful interest. It is acknowledged that this must be managed in an appropriate way to ensure no adverse impacts upon the SAC, however the benefits of this interaction where impacts on individual species are minimised should not go unmentioned. Through appropriate management plans, education and engagement with activity providers, knowledge and important messages about nature conservation can be passed on to those taking part in activities and subsequently create an ongoing interest in nature conservation. Paradoxically, these type of activities, managed in an appropriate way, can help to maintain FCS in an SAC even if there are individual disturbances.

As an expert, a balanced approach to assessment of impacts is required and that is essentially an exercise of judgement. My assessment is not as simple as addressing all risks to individuals, but significant risks on a population conservation objective level. I have identified all such reasonably foreseeable risks and am satisfied that the mechanisms proposed for preventing them from arising are legally enforceable. I am in no doubt that in exercising judgements I have met the standards in regard to reasonable scientific doubt required for the impact assessments involved in this application.”

At the meeting of the Committee the officers made a 64 slide Power Point presentation. This identified “ecological impacts” as one of the key issues. It included a series of maps and photographs. One slide set out the terms of section 6 of the Environment (Wales) Act. Two slides showed the area of the Cardigan Bay SAC. One slide showed the area of the ACW SSSI. A number of slides then set out the process of assessment under the Habitats Regulations and the need for maintenance of the favourable conservation status of relevant species. Three slides addressed the potential impact on grey seals associated with the Cardigan Bay SAC. These noted the potential for “disturbance to a low number seals”. However, under the heading of whether the effect of the development would “undermine the FCS of the seal population associated with Cardigan Bay SAC” the slides explained that the disturbance of some seals would not “compromise the ability of the population as a whole to maintain itself” (original emphasis). The slide then said that when all the matters noted had been taken into account it could not be concluded that the favourable conservation status of the seal population would be compromised. The next slide addressed the duties under the Act. It said that, even aside from the Habitats Regulations, the Act required the Defendant “to consider impacts on habitats and species regardless of whether or not it is a feature of a designated site”. It addressed the position of choughs by saying: “should they become present with the areas associated with the outdoor activities, the Management Plan will ensure any necessary changes to practice are made”. The reference to the management plan was to the proposed TAMP.

An indication of the discussion at the Committee meeting comes from the minutes of that meeting and from a transcript of part of the discussion. The minutes record that in showing the extent of the ACW SSSI and of the Cardigan Bay SAC the Development Management Manager explained that Ceibwr Bay was a “very sensitive site”. Reference was made to the Appropriate Assessment’s conclusion about the potential impact on the Cardigan Bay SAC and to the NRW Draft Report. In response to a request for clarification it was said that the proposed TAMP “would incorporate best practice from [the Concordat]”. It was said that consultation with NRW and the annual renewal of the TAMP “would enable appropriate management should any new species such as choughs become present and require any alteration to management”. Concerns were raised by members of the Committee as to the potential for harm to wildlife in Ceibwr Bay. In response to these concerns officers made further reference to the NRW Draft Report. The minutes record that:

“Some Members remained concerned regarding the potential for damage to the wildlife in Ceibwr bay, and whether sufficient baseline information was available to determine whether populations had decreased and therefore whether visitor numbers should be controlled. Officers clarified that NRW had undertaken a survey regarding sea bird breeding and it was recommended that this was repeated every five years. …The Director added that in terms of the HRA, the critical issue was regarding the population in the SAC as a whole. However when the management plan was submitted annually, the Authority would consult with NRW and the Ecologist who would be aware of any reports of disturbance, and access to certain areas could thereby be controlled. It was concluded that there would be no impacts on the integrity of the SAC.”

The extract from the transcript gives the fuller version of the exchanges which were summarized in that way in the minutes. This confirms the emphasis which was placed on the NRW Draft Report with Miss Blackman saying in response to questioning from members of the Committee “so obviously there has been that NRW report and it’s been recommended that that survey is repeated every five years in that report”. In support of ground 4 the Claimant says that the transcript also shows that attention was being focussed on the seal population of the South West Wales Coast rather than the population potentially affected by the Interested Party’s activities. It will be necessary in due course to consider the proper interpretation of the exchanges on which the Claimant relies.