Wingfield, R (On the Application Of) v Canterbury City Council

A public-body decision remains valid unless and until quashed. In a multi-stage planning consent, an appropriate assessment under the Habitats Directive may be conducted at reserved matters stage where the need for assessment was overlooked at outline stage. The Habitats regime does not require assessment at the earliest possible stage, provided it is completed before implementation is authorised. The assessment must identify all relevant effects, alone and in combination, using the best scientific knowledge, and must dispel reasonable scientific doubt. The competent authority may use the applicant’s research and give considerable weight to Natural England’s views. Review is on Wednesbury grounds. Relief may be refused where the substance of the environmental obligation has been met or section 31(2A) of the Senior Courts Act 1981 applies.

A local resident sought judicial review of Canterbury City Council’s approval of reserved matters for 176 dwellings and parkland at Hoplands Farm. Outline planning permission had been granted in 2017 without a lawful Habitats Regulations Assessment, because mitigation had been considered at the screening stage. After the judgment in People Over Wind v Coillte Teoranta, the Council conducted an assessment before granting reserved matters approval.

The claim challenged the validity of the outline permission, the Council’s decision to remedy the earlier error at reserved matters stage, and the adequacy of the assessment concerning recreational pressure, lighting, invasive species, functionally linked habitat and cumulative effects.

Disposition

Permission to apply for judicial review was granted, but the claim was dismissed. Grounds 1, 2 and 3 failed.

1. Validity of the outline permission. The Council’s failure to conduct a lawful assessment did not make the outline permission a nullity. A public-body decision is valid unless and until quashed. The absence of a timely challenge meant that the permission remained operative.
2. Timing and remedy. Regulation 70(3) of the Conservation of Habitats and Species Regulations 2017 requires an assessment at outline stage where the regulation 63 criteria are met. However, in a multi-stage consent procedure, an assessment may lawfully be undertaken at reserved matters stage where the need for assessment was overlooked at outline stage. The Habitats Directive focuses on avoiding harm to the integrity of protected sites before the implementing decision, and imposes no separate requirement that assessment occur at the earliest possible stage. The Council’s later assessment was therefore a permissible and proportionate remedy.
3. The obligation under EU law to remedy unlawful consequences did not make revocation mandatory. The appropriate course was governed by domestic procedural law, including legal certainty and judicial review time limits. Alternatively, relief could be refused because the substance of the environmental right had been complied with and the outcome would inevitably have been the same.
4. Adequacy of the HRA. The assessment was complete, precise and definitive. It considered effects individually and in combination, including lighting, recreation, invasive species, habitat, drainage and cumulative development. The Council was entitled to use the detailed material supplied by the developer, while retaining responsibility for the assessment, and was entitled to give considerable weight to Natural England’s endorsement.
5. The court applied Wednesbury rationality. The challenge amounted principally to disagreement with the Council’s planning judgment and did not approach the high threshold for intervention. The alleged distance error concerning one access point did not undermine the overall conclusion.

not stated in the judgment.