Hughes v Carmarthenshire County Council

In a judicial review of an appropriate assessment under the Habitats Directive, the court examines legality rather than re-evaluating scientific or planning merits. Existing infrastructure works may be considered when deciding whether a proposed development will adversely affect a European site’s integrity, even if those works do not form part of the development. A development need not itself improve the site’s environmental status. Its failure to contribute to wider improvement is not an adverse effect where it will not worsen the site’s current nutrient status. Article 64(3) of the Habitats Directive supports consideration of action taken by another authority.

The applicant challenged two reserved matters approvals granted by Carmarthenshire County Council for housing developments in Llanelli. The challenge concerned the possible effect of drainage and nutrient loading on the Carmarthen Bay and Estuaries European Marine Site. The High Court, in a judgment reported at [2012] EWHC 568 (Admin), refused permission on all grounds. Elias LJ later granted permission on one ground, which was retained for substantive determination in the Court of Appeal. The central issues were whether the Council had failed to consider the Environment Agency for Wales’s views and whether it had relied on irrelevant infrastructure works in its appropriate assessments.

The Court of Appeal dismissed the two judicial review claims. Lord Justice Sullivan gave the substantive judgment; Lord Justice Patten and Sir David Keene agreed.

1. Scope of review. The court was concerned with whether the appropriate assessments had been lawfully carried out. It was not entitled to review the merits of the assessments or substitute its own scientific evaluation.
2. Environment Agency material. The Agency’s views and its Review of Consents were capable of being material considerations. However, the evidence showed that the Review of Consents had not altered the consensus recorded in the Memorandum of Understanding that the developments fell within the capacity of 2,000 dwellings. The revised memorandum reaffirmed that position. The Council’s witnesses explained the material they had considered, there was no cross-examination, and there was no contrary evidence. The first limb of the challenge therefore failed.
3. Existing infrastructure works. The AMP 4 works had been completed and were operating when the assessments were published. It would have been unrealistic to ignore them. The decision-maker was not required to disregard beneficial works merely because they were not part of the housing developments.
4. The fact that the bay remained eutrophic, and that further measures were needed to address other pollution sources, did not mean that the developments adversely affected site integrity. A failure to contribute to wider environmental improvement was not itself an adverse effect where the developments would not worsen the existing nutrient status. Article 64 of the Habitats Directive concerns review of existing consents, but Article 64(3) indicates the common-sense relevance of action taken by another authority.

The formal order was: appeal dismissed.

• Court of Appeal (Civil Division) granted permission on one ground and dismissed the two judicial review claims: appeal dismissed.
• High Court of Justice, Queen’s Bench Division, Administrative Court (HHJ Milwyn Jarman QC) refused permission on all grounds in the decision reported at [2012] EWHC 568 (Admin).