Abbotskerswell Parish Council v Teignbridge District Council & Anor

In a challenge to a local plan, the question whether the plan-making authority can ascertain that a plan will not adversely affect a European site is a judgment for that authority under regulation 102(4) of the Conservation of Habitats and Species Regulations 2010. The court reviews that judgment on conventional judicial review grounds, including legality, rationality and relevant considerations.

Strategic assessment may properly rely on later, site-specific assessment where the plan is high-level and safeguards require mitigation plans before planning permission. A failure to invite comments expressly on environmental assessment documents will not justify quashing under section 113 of the Planning and Compulsory Purchase Act 2004 unless the claimant suffered substantial prejudice.

The claimant sought to quash the adopted Teignbridge Local Plan under section 113 of the Planning and Compulsory Purchase Act 2004. It alleged that the plan failed to comply with the Habitats Directive and the Conservation of Habitats and Species Regulations 2010 because housing and infrastructure allocations might harm the South Hams Special Area of Conservation and its Greater Horseshoe bat population.

The claimant also challenged the adequacy of the Inspector’s reasons and alleged a failure to invite consultation on the Strategic Environmental Assessment. The issues were whether the Council and Inspector had lawfully assessed and safeguarded the protected site, whether the Inspector gave adequate reasons, and whether the consultation failure substantially prejudiced the claimant.

1. Habitats assessment. The claim was dismissed. Regulation 102(4) of the Conservation of Habitats and Species Regulations 2010 required the Council, as plan-making authority, to ascertain that the Local Plan would not adversely affect the integrity of the South Hams SAC. That was a judgment for the Council, reviewable on conventional judicial review grounds. The court rejected the suggestion that Sweetman required a full merits review.
2. The Council had undertaken an extensive and iterative series of Habitats Regulations Assessments, site appraisals and consultations. The Local Plan contained strategic biodiversity policies, protection for roosts, flyways and sustenance zones, financial and infrastructure safeguards, and mandatory site-specific Greater Horseshoe bat mitigation plans. It was lawful to leave detailed site assessments and mitigation to the planning-permission stage where the strategic plan did not contain project detail.
3. The Council was entitled to rely substantially on Natural England’s view that the proposed safeguards were adequate. The absence, at adoption, of completed settlement-level and strategic mitigation strategies did not render the plan unlawful. The plan required those measures to be prepared, while existing Natural England guidance remained available and individual applications had to address in-combination effects.
4. The Inspector’s reasons were adequate and intelligible under South Bucks District Council v Porter (No 2). His report addressed biodiversity, protected species, the SAC, site-specific mitigation and the weight given to Natural England’s advice. The claimant’s disagreement concerned planning merits rather than an error of law.
5. The Council accepted that it had failed expressly to invite comments on the Strategic Environmental Assessment and its addendum, contrary to regulation 13(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004. Nevertheless, the claimant had access to the documents, participated in the examination and was invited to comment on a later addendum containing substantially updated material. There was no substantial prejudice within section 113(6) and (7) of the Planning and Compulsory Purchase Act 2004. The Local Plan was not quashed.

First-instance judicial review in the High Court (Administrative Court). The claim to quash the Teignbridge Local Plan was dismissed.