Woolley, R (on the application of) v Cheshire East Borough Council

A planning authority dealing with a development affecting a European protected species must do more than note the species and require a licence. It must engage with the Habitats Directive and consider whether the derogation conditions are likely to be met. A planning condition requiring a licence does not discharge that duty.

Planning officers must give decision-makers sufficient guidance on material development-plan policies, including policies concerning exceptional harm to protected areas and major adverse impacts. In a finely balanced case, the report should address policy compliance directly. A failure to comply with the Directive’s requirements is a substantive breach requiring the planning permission to be quashed.

The claimant sought judicial review of the Council’s decision to grant planning permission for the demolition of Bryancliffe and its replacement by three apartments beside the River Bollin. The site was near an Area of Special County Value and contained a protected bat roost.

The challenge alleged failures concerning protected species, development-plan policies, consideration of alternatives, a housing-unit exchange, planning conditions and the statutory summary of relevant policies. The court considered whether the Council had lawfully exercised its planning functions and whether any errors required the permission to be quashed.

1. Ground 1 succeeded. Regulation 3(4) of the Conservation (Natural Habitats etc) Regulations 1994 required the Council to have meaningful regard to the requirements of the Habitats Directive. This required consideration of the derogation conditions, including whether a satisfactory alternative existed and whether imperative reasons of overriding public interest were present. If it was clear, or perhaps very likely, that the conditions could not be met, permission should be refused. If compliance appeared likely, the duty could be discharged; if uncertain, the authority had to decide whether that uncertainty should affect permission.
2. A requirement to obtain a licence was insufficient. The planning officer’s report did not refer to the Directive, the Regulations or the relevant guidance, and the Council had not carried out the necessary exercise. The Council was therefore in breach of regulation 3(4).
3. The breach was substantive European-law unlawfulness. Applying Berkeley v SSE [2001] 2 AC 603, the permission had to be quashed without asking whether the outcome would have been the same. In any event, the court was not satisfied that the outcome would inevitably have been unchanged.
4. Grounds 4 and 5 also succeeded. Structure Plan policy R1 required exceptional justification where development would damage an Area of Special County Value or its setting. Policy GEN 3 contained a strong indication against development having a major adverse impact on an adjacent protected area. Those matters should have been addressed directly in the report. The report also should have expressed a view on compliance with the development plan for the purposes of section 38(6), particularly in a finely balanced case.
5. Grounds 2, 3, 6 and 7 failed. The Council was not required to speculate about whether a future owner might plant trees. The proposed surrender of permission for apartments elsewhere had a sufficient functional connection with the housing-supply policy and was a material consideration. The section 106 agreement adequately dealt with landscaping, and “implement” meant complete the landscaping rather than merely commence it. The decision notice sufficiently summarised the relevant policies.
6. The planning permission dated 15 February 2008 was quashed.