Wilkinson, R (On the Application Of) v South Hams District Council & Anor

A planning authority must identify and apply the special protection given to open space by the development plan and national policy. Treating policy-protected open space merely as an adverse factor in the general planning balance is unlawful where the development plan requires refusal unless material considerations indicate otherwise. In cases involving European Protected Species, the planning authority need only have regard to the Habitats Directive. It may grant permission unless satisfied that there is no serious possibility that Natural England will grant the necessary derogation licence. Whether there are imperative reasons of overriding public interest requires a fact-sensitive assessment balancing public benefits against harm to the protected species, with particular weight given to conservation interests.

The claimant challenged the Council’s decision to grant outline planning permission for 32 dwellings and associated highway works at land containing existing affordable housing, communal open space and woodland supporting dormice. She alleged errors concerning loss of open space, derogation from the Habitats Directive, and failure to consider a possible public right of way and an application to list the land as an Asset of Community Value.

The claim was brought by judicial review. The central questions were whether the Council’s officer’s report adequately identified the development-plan breach arising from loss of open space, whether the Council lawfully addressed the three derogation criteria for an EPS licence, and whether the additional matters were material considerations requiring further treatment.

1. Ground 1 allowed. Officer’s reports must be read fairly and as a whole, having regard to the knowledge of planning committee members. However, the report here treated the loss of open space as an adverse impact to be weighed in the ordinary planning balance. It did not alert members that the proposal breached Policy DP8 and therefore conflicted with the development plan. The mere listing of Policy DP8 did not cure that omission.
2. Under Town and Country Planning Act 1990, section 70(2), and Planning and Compulsory Purchase Act 2004, section 38(6), the development plan had particular statutory status. The Council had to determine the application in accordance with it unless material considerations indicated otherwise. The error was material because the Council could not confidently be satisfied that the decision would have been the same had the correct approach been adopted. The permission was therefore quashed and the application remitted for reconsideration.
3. Ground 2 dismissed. The Council was a competent authority required to have regard to the Habitats Directive, but Natural England had primary responsibility for determining whether an EPS licence should be granted. The planning authority’s function was not to determine finally whether the derogation criteria were met.
4. The question whether there were imperative reasons of overriding public interest involved balancing the public benefits of the scheme against its adverse effect on dormouse habitat. The exercise was fact-sensitive, subject to a wide margin of appreciation, and was not an ordinary planning balance because the conservation interests protected by the Directive required particular consideration. The proposed replacement of substandard social housing and provision of supported housing could amount to a public interest benefit. The evidence of only limited dormouse habitat, one confirmed dormouse and negligible predicted impact entitled the Council to conclude that a licence was not unlikely.
5. A satisfactory alternative had to be a real and practical option directed to what the derogation sought to achieve. The community proposal was not financially realistic or sufficiently developed when the application was determined. The evidence also entitled the Council to proceed on the basis that favourable conservation status might be maintained. A reference under article 267 TFEU was premature and was refused.
6. Ground 3 dismissed. The possible public right of way was recognised as a material consideration, and limited weight could lawfully be given to it pending determination by the highway authority. The request to list the communal green as an Asset of Community Value had subsequently been refused and was therefore immaterial.

First-instance judicial review. The decision to grant planning permission was quashed on Ground 1 and the application was remitted to the Council for reconsideration. Grounds 2 and 3 failed.