Buglife (the Invertebrate Conservation Trust), R (on the application of) v Thurrock Thames Gateway Development Corp & Anor

In determining a planning application affecting biodiversity, the authority must have regard to relevant development plans, material considerations, statutory biodiversity duties and applicable policy. A policy requiring consideration of alternatives, mitigation, compensation and refusal for significant residual harm does not mandate a rigid step-by-step process if the substance of those matters has been addressed and the authority concludes that the harm will not be significant.

An environmental impact assessment is lawful where the authority has sufficient environmental information to assess the effects and has secured an enforceable and sufficiently detailed framework for mitigation, phasing and compensation. It is permissible for precise implementation details to be settled through conditions and planning obligations where the environmental effects have not simply been deferred.

Buglife sought judicial review of planning permission granted by Thurrock Thames Gateway Development Corporation for a Royal Mail distribution depot at the Northern Lagoon of the former Thurrock power station. Rosemound Developments Limited was the interested party.

The claimant was granted permission to pursue two principal grounds. It alleged that the Corporation had failed to apply paragraph 1(vi) and paragraph 16 of Planning Policy Statement 9, and that the environmental impact assessment process unlawfully deferred assessment of the development’s ecological effects and mitigation. The court also considered the statutory duties governing planning decisions, biodiversity and urban development corporations.

1. Policy and statutory duties. A planning authority’s decision must be read benevolently and substantively. The absence of an express step-by-step analysis does not establish that relevant matters were overlooked. The decision-maker had considered the ecological harm, alternative mitigation, phasing, compensatory habitat and the long-term effect of the proposal. It concluded that the measures secured through conditions and the section 106 agreement reduced the harm to temporary and non-significant harm.
2. Paragraph 1(vi) of Planning Policy Statement 9 therefore did not require the Corporation to proceed sequentially through alternative sites, mitigation, compensation and refusal. Paragraph 16, read with paragraph 1(vi), concerned significant harm rather than any harm, however minor. A non-statutory policy could not override the Corporation’s statutory duty under section 136(2) of the Local Government Planning and Land Act 1980. The first ground failed.
3. Environmental impact assessment. The environmental assessment carefully addressed the development’s ecological and biodiversity effects. Regulation 3(2) did not require every precise consequence or remedial measure to be finally specified before permission was granted. Conditions 29 and 30 and the section 106 agreement provided an enforceable and sufficiently detailed framework for wildlife protection, ecological phasing and compensatory habitat. The environmental information had therefore not been put off for determination on another day.
4. The judicial review claim was dismissed. Permission was refused on the subsidiary grounds. The interested party’s application for costs was refused. The claimant was ordered to pay the defendant’s costs, capped at £10,000, subject to a stay until the time for seeking permission to appeal expired or the Court of Appeal otherwise ordered. An expedited corrected transcript was ordered.