Smyth v The Secretary of State for Communities and Local Government & Ors

Under Article 6(3) of the Habitats Directive, appropriate assessment is required where objective information cannot exclude significant effects on a protected site. Preventive measures forming part of a project may be considered at screening, provided their effectiveness removes reasonable doubt. Measures which compensate for harm cannot satisfy that preventive requirement. The competent authority’s technical assessment is reviewed on Wednesbury principles. Reasoned ecological evidence, informed by relevant facts and practical experience, may constitute objective information. Uncertainty about future cumulative effects may be addressed through an interim mitigation scheme where the permitted development creates no significant effects itself and further statutory assessments ensure effective protection before cumulative harm can arise.

Bellway sought permission for 65 dwellings near the Exe Estuary Special Protection Area and Dawlish Warren Special Area of Conservation. Teignbridge District Council assessed the ecological implications and accepted mitigation comprising public open space and a financial contribution to a joint interim mitigation scheme. Natural England endorsed that assessment. The Council nevertheless refused permission for unrelated reasons.

On Bellway’s planning appeal, an inspector appointed by the Secretary of State granted permission after considering additional ecological evidence. He concluded that preventive measures excluded significant effects, including cumulative effects, at the screening stage. Dianne Smyth, chair of a local residents’ association which opposed the development, challenged the permission under section 288 of the Town and Country Planning Act 1990. Patterson J dismissed the challenge in [2013] EWHC 3844 (Admin). Smyth appealed on habitats assessment, national planning policy, infrastructure contributions and reasons. The principal question was whether the inspector’s screening decision satisfied the Directive’s strict precautionary requirements.

The appeal was dismissed unanimously. Sales LJ gave the substantive judgment, with which Kitchin and Richards LJJ agreed. No reference to the Court of Justice was warranted.

1. Article 6(3) required a strict precautionary approach. Screening must lead to appropriate assessment where objective information cannot exclude significant effects, individually or cumulatively. Authorisation following appropriate assessment required the absence of reasonable scientific doubt about adverse effects on site integrity. Absolute certainty was unattainable and was not required. The principles in Waddenzee and Sweetman governed the assessment.
2. Preventive safeguarding measures could be considered under Article 6(3), including at screening, where incorporated into the project or secured as requirements of permission. If the available information established their effectiveness and excluded significant harmful effects, further assessment would serve no purpose. The reasoning in R (Hart DC) v Secretary of State for Communities and Local Government was clearly correct. Measures which merely offset harm after it occurred belonged instead to Article 6(4).
3. The competent authority’s assessment involved technical and evaluative judgments. Judicial supervision applied the Wednesbury standard, substantially equivalent to review for manifest error of assessment. The court did not undertake a fresh assessment as the primary decision-maker.
4. An unsupported expert assertion would not satisfy the requirements for objective information and the best scientific knowledge. Conventional expert evidence supported by relevant facts, reasoning, experience and ecological studies could do so. Considerable weight should ordinarily be given to Natural England’s opinion. The inspector had sufficient evidence and applied the correct legal approach.
5. The development itself would have no significant effects. The material cumulative risks depended on substantial future developments which required further habitats assessments. The interim scheme, supported by ecological evidence and Natural England, provided sufficient assurance that preventive measures would precede those risks. If adequate protection could not be secured, permission for a later development would have to be refused or delayed. This conclusion preserved the strict precautionary standard.
6. Because appropriate assessment was unnecessary, paragraph 119 of the National Planning Policy Framework did not exclude the presumption in favour of sustainable development. The conservation contribution satisfied regulation 122 of the Community Infrastructure Levy Regulations 2010. It was necessary, directly related to the development and proportionate in scale and kind. The prospective operation of regulation 123 required no further consideration because equivalent funding could be obtained through a levy.
7. The inspector’s report, read sensibly as a whole and in its inquiry context, sufficiently explained the principal disputed issues. It satisfied South Buckinghamshire District Council v Porter (No. 2). A distinct cumulative-effects argument first advanced in reply was refused because its late introduction would be unfair and required substantial further argument and potentially evidence.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 174 , unanimously dismissed the appeal and upheld Patterson J’s dismissal of the statutory challenge.
• High Court, Queen’s Bench Division, Administrative Court: Patterson J dismissed the application under section 288 of the Town and Country Planning Act 1990 in [2013] EWHC 3844 (Admin).
• Planning inspector: On 20 June 2012, allowed Bellway’s appeal against Teignbridge District Council’s refusal and granted planning permission subject to conditions.