Community Against Dean & Anor, R (on the application of) v Shire Oak Quarries Ltd

A local planning authority has a wide discretion whether to take enforcement action, what action to take and when to act. Its decision is challengeable only on public law grounds, and intervention is particularly rare where the complaint concerns reasonableness or proportionality. The obligation under regulation 9(3) of the Conservation of Habitats and Species Regulations 2010 requires genuine engagement with the Habitats Directive, but it does not require every ecological issue to be addressed in detail in an enforcement report. A proportionate decision to await a prompt retrospective planning application, supported by an environmental statement and full environmental assessment, may satisfy that obligation.

The claimant sought judicial review of Cornwall Council’s decision not to take immediate enforcement action against an unauthorised perimeter fence at a quarry in the Cornwall Area of Outstanding Natural Beauty. The fence had been erected after planning permission for ancillary development was quashed because an environmental impact assessment was required. The claimant alleged that, when deciding whether to issue an enforcement notice, the Council failed to have proper regard to the Habitats Directive and the protection of bats.

The Council had decided to allow the operator time to submit a retrospective planning application, accompanied by an environmental statement, while reserving its enforcement powers. The central issue was whether that decision was unlawful under regulation 9(3) of the Conservation of Habitats and Species Regulations 2010 and section 172 of the Town and Country Planning Act 1990.

1. Application refused. The sole ground of challenge was unarguable.
2. The statutory planning enforcement scheme gives the local planning authority a wide discretion whether to take enforcement action, what form it should take and when it should be taken. The power to issue an enforcement notice arises only where it appears expedient to do so, having regard to the development plan and other material considerations. Review is confined to public law grounds, and judicial intervention is likely to be rare.
3. Regulation 9(3) requires a competent authority, when exercising its functions, to have regard to the requirements of the Habitats Directive so far as they may be affected. That obligation requires genuine engagement, but the enforcement report was intended to summarise the Council’s considerations. The Council was entitled to treat the likely effect of the fence on bats as limited and to focus on the principal issues.
4. The absence of detailed consideration of bat flight corridors and cumulative effects did not establish unlawfulness. The Council had the environmental effects of the fence in mind, including its potential effect on bats. The existing quarry permission had already addressed the impact of quarrying operations through mitigation measures, including control of blasting locations. The likely cumulative effect of the fence was, on the evidence available, very minor.
5. The Council was entitled to regard a retrospective planning application, supported by an environmental statement and full environmental impact assessment, as the appropriate and proportionate process for considering the fence’s environmental effects and imposing any necessary conditions. It had not surrendered its enforcement powers, and had kept the position under review.
6. The court also observed that, absent extraordinary circumstances such as an imminent expiry of the enforcement period, it should generally be slow to entertain challenges based on a failure to take enforcement action against particular unauthorised development.