Shadwell Estates Ltd v Breckland District Council & Anor

The adequacy of a sustainability appraisal, strategic environmental assessment or habitats assessment is reviewed on conventional Wednesbury grounds. The decision-maker has a substantial area of judgment. An omission warrants intervention only where the document cannot reasonably be regarded as the required assessment in substance.

An environmental report need contain only information which may reasonably be required, having regard to the planning stage and the avoidance of duplication. The views of a statutory nature conservation consultee carry considerable weight and require cogent and compelling reasons to depart from them. A challenge under regulation 61 of the Conservation of Habitats and Species Regulations 2010 requires credible evidence of a real risk to the integrity of the protected site.

The claimant brought a statutory challenge under section 113 of the Planning and Compulsory Purchase Act 2004 to the Council’s adoption of the Thetford Area Action Plan. The plan confirmed the allocation of land north-east of Thetford for a strategic urban extension of 5,000 homes.

The claimant alleged that the sustainability appraisal and strategic environmental assessment inadequately addressed evidence of stone-curlews on the Kilverstone Estate. It also alleged that the examining Inspector wrongly found the plan sound, that relevant ecological surveys had not been disclosed to him, and that the habitats assessment breached regulation 61 of the Conservation of Habitats and Species Regulations 2010.

The central issues were whether the environmental assessments were legally adequate, whether the non-disclosure supplied a public law ground for intervention, and whether there was credible evidence that the plan created a real risk to the integrity of the Breckland Special Protection Area.

1. The claim was dismissed. Judicial review of the adequacy of environmental appraisals, assessments and impact statements proceeds on conventional Wednesbury grounds. A distinction must be drawn between deficiencies relevant only to the planning merits and deficiencies showing an error of law or making the document incapable of being regarded as the required environmental assessment in substance. The court examines substantial compliance, rather than the fine detail or quality of every treatment.

2. The sustainability appraisal complied with section 19(5) of the Planning and Compulsory Purchase Act 2004 and regulation 12 of the Environmental Assessment of Plans and Programmes Regulations 2004. It addressed biodiversity, effects on stone-curlews and reasonable alternatives. It did not have to reproduce a comprehensive assessment of all evidence about stone-curlew activity. Regulation 12 requires only information which may reasonably be required, taking account of the planning stage and the need to avoid duplicating assessments already undertaken for the Core Strategy.

3. The approach had strong support from Natural England and the RSPB. A statutory consultee’s views must receive considerable weight, and departure requires cogent and compelling reasons. The evidence concerning Kilverstone fell far short of that standard. Nor was it necessary to suspend the area action plan until completion of longer-term ecological work recommended during the Core Strategy process.

4. The Inspector’s finding that the plan was sound was open to him. Even assuming that the Council should have disclosed the later ecological surveys, their disclosure could not have affected his conclusion. They revealed too few nesting attempts to bring Kilverstone within the relevant buffer zone and instead undermined the claimant’s case.

5. The regulation 61 challenge also failed. It required credible evidence of a real risk to the integrity of the Special Protection Area. The 1,500-metre distance had been adopted in the unchallenged Core Strategy with the support of Natural England and the RSPB, and no new evidence undermined it. The alleged incompleteness of the Kilverstone data and a personal view attributed to an RSPB officer did not establish the required risk.

not stated in the judgment.