Millgate Developments Ltd v Secretary of State for Communities and Local Government

Under regulation 48 of the Conservation (Natural Habitats etc) Regulations 1994, the threshold question whether a proposal is likely to have a significant effect on a European site is distinct from the later question whether the site’s integrity will be adversely affected. The precautionary principle applies at the threshold stage: significant harm is likely if the risk cannot be excluded on the basis of objective information. An inspector may give little weight to proposed alternative green spaces where their suitability, accessibility or ability to divert recreational pressure is uncertain. The assessment of those matters is ordinarily a planning judgment. A decision letter must be read as a whole and in a common-sense manner. A long-term habitat-management strategy may properly receive limited weight where its benefits are unlikely to be realised before development and changed recreational patterns take effect.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dismissing its appeal against refusal of planning permission. The proposal involved demolishing two dwellings and constructing 14 apartments at Crowthorne.

The site was near parts of the Thames Basin Heaths Special Protection Area. The inspector accepted the proposal’s effects on local character and infrastructure but concluded that, because no suitable alternative natural green space was secured, the proposal could adversely affect the SPA’s integrity in combination with other plans and projects. The claimant challenged the inspector’s approach to the Habitats Regulations, his treatment of alternative green spaces and his assessment of a long-term habitat-management plan.

1. The application was dismissed. The claimant was ordered to pay the defendant’s agreed and summarily assessed costs of £8,096.
2. The alleged confusion between the significant-effect threshold and the appropriate-assessment integrity test was not made out. The inspector correctly addressed the relationship between those stages under regulation 48 of the Conservation (Natural Habitats etc) Regulations 1994.
3. The inspector was entitled to apply the precautionary principle. Following Waddenzee (ECJ C-127/02), as explained also by R (Hart District Council) v Secretary of State for Communities and Local Government and others [2008] EWHC 1204 (Admin), the risk of significant harm could be treated as likely where it could not be excluded on objective information.
4. The decision letter, read as a whole, showed that the inspector gave little weight to Edgbarrow Hill because it had been excluded from the final list of suitable alternative natural green spaces after further assessment, including indications that public access might be restricted. Other spaces were less close to the appeal site, or had not been formally assessed. The weight given to those matters was a planning judgment open to the inspector.
5. The inspector was also entitled to give limited weight to the Forestry Commission’s 30-year habitat-management strategy. Although it contemplated continuing habitat improvement, there was no evidential basis for concluding that significant improvement would occur before the development was completed and new recreational patterns had become established.
6. There was no error of law in the inspector’s reasoning. The application was dismissed.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision dated 12 September 2007 dismissing its planning appeal. The High Court dismissed the application and ordered payment of costs.