Bagshaw & Anor v Wyre Borough Council

A planning authority must establish both the presence of a protected species and the extent to which the proposed development may affect it before granting permission. That assessment cannot ordinarily be postponed to planning conditions. A failure to assess the ecological effect of reducing both the length and height of a hedgerow may breach regulation 9(3) of the Conservation of Habitats and Species Regulations 2010 and the requirements of the Habitats Directive. Conditions may form part of a layered approach, but they cannot cure that prior failure. Where the planning officer’s report significantly misleads the committee about a material consultation response, and the court cannot be satisfied that the error did not affect the outcome, the permission should be quashed.

Residents challenged Wyre Borough Council’s grant of planning permission for 18 dwellings at Hall Lane, Great Eccleston. The challenge concerned the effect of removing and reducing a roadside hedgerow and a mature ash tree on bats and other protected species. The County Ecologist had requested further information about mitigation and compensation for the loss of habitat used by foraging and commuting bats, but no further bat report was supplied. The claimants contended that the committee report misstated the ecologist’s position, failed to assess the extent of the likely impact, and relied impermissibly on conditions.

The central issues were whether the Council had complied with its statutory and European obligations and whether the decision was materially flawed.

1. The decision was quashed. The officer’s report significantly misled the planning committee about the County Ecologist’s consultation responses, and the Council failed to engage properly with the requirements of the Conservation of Habitats and Species Regulations 2010, the Habitats Directive and Circular 06/2005.
2. Under regulation 9(3), the Council had to have regard to the requirements of the Habitats Directive. The presence of bats had been established, but the Council had not established the extent to which the proposed development would affect them. The relevant ecological significance lay not only in the length of hedgerow removed, but also in its proposed reduction in height. The combined effect was unknown.
3. The court accepted that a planning authority may adopt a layered approach involving statutory compliance followed by suitable conditions. That approach did not assist here because the necessary prior assessment had not occurred. Conditions requiring a later landscaping scheme and retention of hedgerows could not replace an assessment of the nature and extent of the negative impact on bats.
4. The report from Natural England did not cure the defect. It was not referred to in the committee report, there was no evidence that the committee knew of it, and Natural England had required a monitoring strategy for bats which the conditions did not provide. The Council was not responsible for policing offences under Article 12, but it still had to make a lawful planning decision having regard to the Directive.
5. Although the court considered the Natural England material in deciding whether to exercise its discretion, the basic failure to comply with the Regulations and Circular prevented it from being satisfied that the outcome would inevitably have been the same. The decision notice was therefore quashed.

This was a first-instance judicial review. The judgment records that an earlier grant of planning permission had been revoked after a previous judicial review claim. The present decision concerned the Council’s subsequent permission dated 30 November 2012.