Webb v Herefordshire District Council & Anor (includes Costs Judgment)

A planning authority must approach its statutory environmental duty by considering the decision-making process as a whole. References to significant adverse effects do not establish an unlawful approach where the authority has properly considered the statutory purpose and then balanced relevant harm against planning benefits. An error in a planning report will not justify intervention unless it is material when the reasons are read fairly and as a whole. In relation to protected species, the authority may rely on environmental information and proposed mitigation where there is no objective reason to doubt that any necessary licence will be obtained. A claimant should incur judicial review costs only where proceedings were reasonably necessary in the circumstances.

The claimant sought permission to challenge Herefordshire District Council’s grant of planning permission for four wind turbines and associated works at Reeves Hill. The renewed application followed refusal of permission on the papers by a Deputy High Court Judge. The claimant alleged failure to comply with the statutory duty concerning the Area of Outstanding Natural Beauty, reliance on erroneous national policy advice, failure to consider protected-species requirements, defective reasoning concerning micro-siting, and inconsistency in the approved plans.

The court also determined costs arising from related proceedings challenging a later section 73 planning permission, which the Council proposed to revoke and ultimately revoked. The central questions were whether any ground was arguable and whether the claimant’s costs of the related proceedings had been reasonably necessary.

1. Permission refused. The Council’s decision-making had to be assessed in the round. The environmental statements and committee reports had addressed landscape and visual impact, including the AONB. Read in that context, the references to significant adverse effects did not show that the Council had applied a weaker test than the duty under section 85(1) of the Countryside and Rights of Way Act 2000. The Council had fulfilled that duty and lawfully balanced relevant adverse effects against environmental, social and economic benefits.
2. The alleged advice in 2009 that permission could be refused on landscape grounds only in the most exceptional circumstances was legally wrong. However, the evidence consisted of unapproved composite notes of uncertain provenance and did not establish that the Council acted under that misapprehension in 2011. The allegation was therefore speculative and did not provide an arguable ground.
3. Under regulation 9(5) of the Conservation of Habitats and Species Regulations 2010, the Council had to have regard to the requirements of the Habitats Directive. Applying the approach identified in R(Morge) v Hampshire County Council [2011] Env LR 19, the Council was entitled to rely on the environmental assessment, Natural England’s response and proposed mitigation. The Article 12(1) duty had been complied with. There was no reason to believe that an appropriate licence would not be obtained, so the Council was not required to consider specifically whether the Article 16 derogation conditions would be met.
4. The reference to micro-siting did not materially undermine the permission. The essential reasoning was that impacts would be minimal and could be addressed by mitigation and conditions. The permission was not fairly or reasonably to be understood as dependent on micro-siting. The alleged inconsistency in the plans also failed: the September 2011 plan amended the earlier plan, the permission expressly referred to the later plan, and the Council understood the amendment.
5. In the costs judgment, the overriding principle was that judicial review costs should not be incurred unless proceedings were reasonably necessary. The Council had clearly stated that it would revoke the later permission, and objectively it was reasonable to contemplate that revocation would succeed. Waiting would not have created a real risk of losing the claim through expiry of the three-month period, since fairness would have required an extension if the promised revocation failed. The claimant’s costs were therefore not reasonably necessary. No order for those costs was made, and permission to appeal was refused by the judge.

Permission to apply for judicial review was initially refused on the papers by HHJ Bidder QC, sitting as a Deputy High Court Judge. The claimant renewed the application before the High Court, which again refused permission on all grounds.