Hart District Council, R (on the application of) v Secretary of State for Communities & Local Government & Ors

When deciding whether a project is likely to have a significant effect on a protected European site, a competent authority must assess the project as a whole. It may consider avoidance or mitigation measures already incorporated into the project. An appropriate assessment is required if objective information does not exclude the risk of a significant effect, including where doubt remains about the measures’ efficacy.

The weight given to a statutory nature conservation adviser’s evidence is a matter of planning judgment. A demonstrated five-year housing supply may rationally be described as fragile where it depends substantially on the timely delivery of one site. Where necessary infrastructure has reasonable prospects of delivery, the decision-maker may accept planning obligations instead of imposing a Grampian condition.

The claimant district council applied under section 288 of the Town and Country Planning Act 1990 to quash the Secretary of State’s decision allowing four planning appeals and granting permission for 170 dwellings, associated open space and access works. The development was near the Thames Basin Heaths Special Protection Area. The principal issue was whether an appropriate assessment was required under article 6(3) of the Habitats Directive and regulation 48 of the Conservation (Natural Habitats, &c.) Regulations 1994.

The inquiry inspector recommended dismissal because she doubted whether the proposed alternative recreational space would prevent increased recreational pressure on the protected area. The Secretary of State preferred Natural England’s view that the measures would avoid any net increase in visits and therefore exclude a likely significant effect.

The council also challenged the Secretary of State’s treatment of the five-year housing-land supply and her decision to accept planning obligations, rather than impose a Grampian condition, for improvements to King John’s Ride.

1. The application was dismissed. There is no rule requiring mitigation or avoidance measures forming part of a project to be disregarded at the screening stage under article 6(3) of the Habitats Directive or regulation 48(1) of the Conservation (Natural Habitats, &c.) Regulations 1994. The competent authority must consider the particular project as a whole, including measures incorporated to prevent or reduce effects on the protected site.

2. The precautionary test in Waddenzee, Case C-127/02, remains controlling. An appropriate assessment is required where the risk of a significant effect cannot be excluded on objective information. If the competent authority doubts the likely efficacy of incorporated measures, it must require an assessment. The mere possibility that mitigation might later be devised is insufficient. Here, however, Natural England had rigorously examined a project-specific package intended to avoid any net increase in recreational visits.

3. The Secretary of State was entitled to give great weight to Natural England as the statutory nature conservation adviser and to prefer its assessment to the inspector’s doubts. The statutory expression “likely to have a significant effect” was used with knowledge of the Waddenzee test. Once the Secretary of State accepted Natural England’s conclusion that objective information excluded any net increase in recreational activity, she did not need to examine the inspector’s remaining deliberations further.

4. The Secretary of State rationally gave little weight to the technical assessor’s provisional report. That report addressed the strategic efficacy of suitable alternative natural green space, whereas the appeals concerned a detailed, locally researched package. The assessor’s addendum accepted that a project-specific package might be supported by sufficient objective evidence.

5. The conclusion that the demonstrated five-year housing supply was fragile did not introduce an additional test into national policy. Approximately 38 per cent of the supply depended on one site. It was rational to recognise the risk of delay while accepting a reasonable prospect of delivery.

6. The Secretary of State was entitled to accept planning obligations requiring reasonable endeavours to secure the necessary access improvements. A Grampian condition is not mandatory whenever necessary works have reasonable prospects of delivery. The choice of securing mechanism was a matter of planning judgment.

7. Construed as a whole, the decision letter both allowed the appeals and granted planning permission, despite omitting the usual express words of grant. The application was dismissed, costs were awarded to the Secretary of State, and permission to appeal was refused.

1. High Court (Administrative Court): The council’s section 288 application to quash the Secretary of State’s decision was dismissed: [2008] EWHC 1204 (Admin).

2. Secretary of State: The four planning appeals were allowed and planning permission was granted, contrary to the inspector’s recommendation.

3. Planning inquiry: The inspector recommended that all four appeals be dismissed.