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

Under Article 6(3) of the Habitats Directive, an appropriate assessment is required where significant effects on a protected site cannot be excluded on objective information. The test is stringent and precautionary, but a competent authority may consider preventive safeguarding measures forming part of the project at the screening stage.

Measures which prevent or reduce harm may be considered under Article 6(3). Measures which merely offset harm elsewhere are compensatory measures for Article 6(4). A court reviews the competent authority’s evaluative and technical assessment for Wednesbury irrationality, not by making the assessment afresh.

A planning obligation may fund proportionate strategic mitigation where it satisfies regulation 122 of the Community Infrastructure Levy Regulations 2010.

The appellant challenged an inspector’s grant of permission for 65 dwellings near the Exe Estuary Special Protection Area and Dawlish Warren Special Area of Conservation. The local planning authority had refused permission for unrelated reasons, having assessed the ecological effects as acceptable subject to on-site open space and a financial contribution under a joint interim mitigation arrangement.

On the developer’s planning appeal, the inspector accepted ecological evidence that the development, including preventive mitigation measures, would not be likely to have significant effects on the protected sites. He granted permission subject to conditions and a section 106 contribution.

Patterson J dismissed the appellant’s statutory challenge: [2013] EWHC 3844 (Admin). The appeal concerned compliance with Article 6(3) of the Habitats Directive, the use of the contribution under the CIL Regulations, national planning policy, and the adequacy of the inspector’s reasons.

1. Appeal dismissed. Sales LJ gave the court’s reasons, with which Kitchin LJ and Richards LJ agreed. The inspector’s decision and Patterson J’s dismissal of the statutory challenge stood.
2. Article 6(3). The court applied the strict precautionary approach in Landelijke Vereniging to Behoud van de Waddenzee v Staatsecretaris van Landbouw, Natuurbeheer en Visserij, Case C-127/02. An appropriate assessment is required if objective information cannot exclude significant effects. The test nevertheless permits a competent authority to consider preventive safeguarding measures which form part of the project at screening stage.
3. Mitigation and compensation. Measures which prevent harmful effects, or reduce them below significance, are relevant under Article 6(3). They differ from measures which accept harm to the protected site and offset it by environmental benefit elsewhere. The latter are compensatory measures to be considered, if at all, under Article 6(4). The court followed R (Hart DC) v Secretary of State for Communities and Local Government, [2008] EWHC 1204 (Admin), and held that its approach was clearly correct.
4. Review and evidence. Although the substantive protection is stringent, the competent authority makes a multi-factorial and technical assessment. Judicial review is on the Wednesbury standard, substantially equivalent in this context to review for manifest error of assessment. An inspector may rely on properly reasoned expert ecological evidence, including experience and underlying survey material, and may give considerable weight to Natural England absent good reason not to do so.
5. Application. The inspector was entitled to find that the development alone would have no significant effect. The joint interim approach, coupled with a requirement for fresh Article 6(3) assessment before future developments capable of creating material in-combination effects could proceed, provided sufficient assurance that preventive measures would be in place before such effects arose. That conclusion did not compromise the precautionary approach.
6. CIL, policy and reasons. The conservation contribution met all three requirements in regulation 122. Regulation 123 was not yet in force and would not materially affect the interim arrangement. Since no appropriate assessment was required, the inspector could apply the presumption in favour of sustainable development. His report, read fairly and as a whole, adequately explained his conclusions.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the inspector’s grant of planning permission: [2015] EWCA Civ 174.
• High Court, Administrative Court: Patterson J dismissed the appellant’s application under section 288 of the Town and Country Planning Act 1990: [2013] EWHC 3844 (Admin).
• Planning inspector: on 20 June 2012, allowed the developer’s appeal against the local planning authority’s refusal and granted planning permission subject to conditions and a section 106 contribution.