Savage, R (on the application of) v Mansfield District Council & Anor

A possible future designation does not make land a potential Special Protection Area. Under the Conservation of Habitats and Species Regulations 2010, read with paragraph 118 of the National Planning Policy Framework, statutory consultation and appropriate-assessment duties arise only when the relevant European-site or pSPA trigger exists. A local authority need not undertake a shadow assessment for an area that is not even a pSPA.

Advice from Natural England may still be a material consideration, but its weight is for the planning decision-maker. A committee is adequately informed when the substance of a consultee’s position is fairly conveyed. No reopening duty arises without a new material consideration. A planning obligation is subject to regulation 122(2) only when it is a reason for permission; an indemnity payable on revocation or modification was not such a reason.

A local resident challenged the grant of outline planning permission for a large mixed-use development near Harlow Wood, an area supporting nightjar and woodlark. The site was near an SSSI, but Sherwood Forest had not been designated as a Special Protection Area or potential Special Protection Area. Natural England advised that the council might adopt a risk-based approach because a future designation could require review of the permission and possible compensation.

The appeal was from proceedings before Mr Justice Stewart in the Administrative Court, claim CO/9155/2013. The issues were whether the council had failed to comply with environmental duties, whether its officers fairly informed the planning committee, whether the decision should have been reopened before permission was formally granted, and whether a section 106 indemnity breached regulation 122.

Lewison LJ gave the judgment, with the President of the Family Division and King LJ agreeing. The Court of Appeal dismissed the challenge on all grounds.

1. Under the Conservation of Habitats and Species Regulations 2010, read with paragraph 118 of the National Planning Policy Framework, a site did not qualify as a pSPA until the Government had initiated public consultation on its designation. Sherwood Forest had not reached that stage. The council therefore had no statutory duty to consult Natural England or conduct an appropriate assessment in relation to the possible future pSPA or SPA.
2. Natural England could advise the council under regulation 129. Its advice was a material consideration, but the weight to be given to it was for the council. The duty under regulation 9A(8) required reasonable endeavours to avoid harm to wild-bird habitats, but did not require a shadow or quasi-appropriate assessment for a site that was not even a pSPA. The proposed protection protocol was sufficient to discharge that duty. Commission of the European Communities v Spain C-355/90 confirmed that the underlying duty was not confined to established SPAs.
3. The officers fairly conveyed Natural England’s position to the committee. The failure to place the written email before the committee did not invalidate the decision because its substance was explained. The approach in R v Selby DC ex p Oxton Farms [1997] EGCS 60 was applied.
4. There was no duty to reopen the decision between the resolution to grant and the formal grant absent a new material consideration. An internal decision tree was only a methodology and had not acquired the status of a development plan policy or supplementary planning document.
5. Regulation 122(2) of the Community Infrastructure Levy Regulations 2010 was engaged only if the particular planning obligation was a reason for granting permission. The modified section 106 covenant indemnified the council against compensation if the permission were later revoked or modified. It operated only in that event and could not overcome an objection to carrying out the development. The obligation therefore did not constitute a reason for granting permission. Derwent Holdings Ltd v Trafford BC [2011] EWCA Civ 832 was applied.

• Court of Appeal (Civil Division): The court dismissed the challenge on all grounds. [2015] EWCA Civ 4
• Administrative Court: The appeal was from the judgment of Mr Justice Stewart in claim CO/9155/2013. The judgment’s citation and operative order are not stated in this judgment.