Prideaux, R (on the application of) v Fcc Environment UK Ltd

A planning authority deciding an application affecting European Protected Species must have regard to the Habitats Directive, but need not duplicate Natural England’s licensing assessment. Following R. (Morge) v Hampshire County Council, permission should ordinarily be granted if the proposal is acceptable on planning grounds unless it is likely to offend article 12(1) and unlikely to be licensed under the derogation provisions. A satisfactory alternative must be a real option capable of addressing the need for which the derogation is sought. Its assessment may take account of planning, environmental, physical and practical constraints. National policy on biodiversity permits mitigation to be considered when deciding whether significant harm would result. Where members accept a detailed officers’ report, concise reasons in the decision notice may suffice.

The claimant sought judicial review of Buckinghamshire County Council’s grant of planning permission for an energy-from-waste facility and associated access road at Greatmoor Farm. He alleged failures to comply with the Habitats Directive and the Conservation of Habitats and Species Regulations 2010, failure to apply biodiversity policy in the National Planning Policy Framework, and inadequate reasons.

The principal dispute concerned whether the Council had properly considered the likelihood of derogation licences for works affecting bats and great crested newts, particularly whether there was a satisfactory alternative access route. The claim also concerned the assessment and mitigation of effects on butterflies, Sites of Special Scientific Interest and other biodiversity interests.

1. European Protected Species. The Council’s duty under regulation 9(5) of the Conservation of Habitats and Species Regulations 2010 was to have regard to the requirements of the Habitats Directive so far as affected by its planning function. It was not required to undertake Natural England’s assessment of whether article 12 would be breached or whether a derogation licence should be granted. The more demanding approach suggested in R. (Woolley) v Cheshire East Borough Council could no longer be treated as an additional gloss on R. (Morge) v Hampshire County Council.
2. The “no satisfactory alternative” requirement did not mean that the authority had to select the route with the least possible effect on European Protected Species. An alternative had to be a real option capable of resolving the relevant problem. Planning, traffic, residential amenity, heritage, ecological and other objectively verifiable constraints could make an alternative unsatisfactory. The Council’s conclusion that the alternative access routes were unacceptable and that the derogation tests were likely to be met was reasonable.
3. The Council was entitled to attach substantial weight to Natural England’s views. Natural England had withdrawn its objection after detailed consultation and had not indicated that licences for bats or great crested newts were likely to be refused. The later quashing of licences, and the later grant of a further licence, did not affect the lawfulness of the earlier planning decision.
4. Biodiversity policy. The committee was entitled to rely on ecological assessments and Natural England’s expert view that mitigation would prevent significant harm and produce longer-term benefits. Paragraph 118 of the National Planning Policy Framework did not require mitigation to be ignored when assessing whether significant harm would result. The possible future designation of the railway line as a Site of Special Scientific Interest did not engage the policy protecting proposed Special Protection Areas or possible Special Areas of Conservation.
5. Reasons. Article 31(1) of the Town and Country Planning (Development Management Procedure) (England) Order 2010 required a summary of relevant development-plan policies and reasons, not a full account of every statutory or policy consideration. The detailed officers’ reports could be considered because the committee followed their recommendation. The concise decision notice adequately disclosed the essential rationale.

The claim for judicial review was dismissed.