Buglife The Invertebrate Conservation Trust, R (on the application of) v Thurrock Thames Gateway Development Corporation & Ors

Planning policy statements such as PPS9 are not to be construed as statutes. A planning authority may take an overall and long-term view of biodiversity impacts, including the effects of proposed mitigation, compensation, management and environmental benefits. The authority need not undertake a phrase-by-phrase analysis if it has sufficiently addressed the main issues and evidence. A complete phasing blueprint is not invariably required before permission is granted. Depending on the circumstances, enforceable mitigation, a section 106 agreement, a phasing condition and effective monitoring may provide sufficient safeguards. Expert advice from a statutory conservation consultee may properly receive considerable weight.

Buglife sought judicial review of a decision by Thurrock Thames Gateway Development Corporation to grant outline planning permission for a distribution depot on a former power-station ash lagoon. The site contained nationally important invertebrate habitat and adjoined an SSSI.

Mitting J refused the application: [2008] EWHC 475 (Admin). On appeal, Buglife argued that the authority had failed to consider alternative sites, apply the species-protection test in PPS9, and assess mitigation and phasing before granting permission under the Town & Country Planning (Environmental Impact Assessment (England & Wales) Regulations 1999). The central issue was whether the decision was unlawful despite the proposed mitigation, planning obligations, conditions and further monitoring.

1. Appeal dismissed. The planning permission was lawful.
2. PPS9 was not a statute requiring phrase-by-phrase analysis. The authority had to address the main issues and have regard to the purpose of conserving biodiversity. It was entitled to consider the overall and long-term position, including the limited adverse effects identified, the advantages of the site, proposed mitigation, environmental benefits and the detailed representations of Natural England.
3. Although alternative sites had been barely considered, the authority’s approach was lawful in the circumstances. The site’s advantages in an urban development area, together with the assessed harm and proposed safeguards, justified the conclusion reached.
4. The authority was entitled to take the mitigation and management proposals into account when assessing the biodiversity impact. It could conclude that the harm was not significant for the purposes of PPS9 and the relevant circular. Natural England’s withdrawal of its objection, subject to conditions and obligations, was a material consideration deserving considerable weight.
5. There is no universal requirement for a complete phasing blueprint before planning permission is granted. In some cases appropriate enforceable mitigation, predetermined phasing or further consultation will be necessary. Here, the environmental information, mitigation proposals, section 106 agreement, phasing condition and monitoring arrangements were sufficient. The detailed phasing could properly be settled on a rolling basis as development proceeded and its environmental effects emerged.
6. Lord Justice Rix and Lady Justice Arden agreed with Lord Justice Pill. The appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal from Mitting J’s refusal of judicial review: [2009] EWCA Civ 29.
• Administrative Court, Queen’s Bench Division refused Buglife’s application to quash the planning permission: [2008] EWHC 475 (Admin).