Wild Justice, R (on the application of) v Pembrokeshire Coast National Park Authority

Failure to disclose a document materially relied on in officers’ advice may breach statutory publication duties and procedural fairness. A planning authority must also address mandatory relevant considerations in substance, including a policy presumption protecting a designated site.

Under regulation 63 of the Conservation of Habitats and Species Regulations 2017, permission may be granted only where the authority is satisfied that site integrity will not be adversely affected. The standard is demanding, but review remains one of rationality. Conditions must be reasonably suitable to achieve the protective objective; later approval of a management plan can suffice where the authority retains effective control.

Wild Justice sought judicial review of the Authority’s grant of planning permission for an outdoor adventure centre whose activities would take place at or near environmentally protected sites, including the Cardigan Bay Special Area of Conservation and the Aberath-Carreg Wylan Site of Special Scientific Interest.

Five grounds challenged disclosure of documents, consideration of the SSSI, the adequacy of planning conditions, the approach to risk under the Habitats Regulations, and an alleged balancing of ecological harm against public benefits. The Authority relied alternatively on section 31(2A) of the Senior Courts Act 1981.

1. Ground 1 succeeded in part. The NRW Draft Report was a background paper under section 100 D of the Local Government Act 1972. It was materially relied on in the Officers’ Report, the Appropriate Assessment and the Committee’s consideration. Its non-disclosure caused material prejudice because the claimant could have challenged its methodology and conclusions.
2. The Concordat was not a background paper. The Committee’s decision was based on the Officers’ Report, not the Appropriate Assessment as an assessment made by the Committee itself. The Appropriate Assessment relied on the Authority’s own conditions, particularly the TAMP, rather than incorporating the Concordat. The Q&A Document should have been published under the Town and Country Planning (Development Management Procedure)(Wales) Order 2012, but its omission caused no material prejudice. The later letter was neither a background paper nor unfairly withheld.
3. Ground 2 succeeded. The potential impact on the ACW SSSI was a mandatory relevant consideration. Paragraph 6.4.26 of PPW 12 required careful assessment of development outside an SSSI likely to damage its notified features. Showing the SSSI on one slide, without identifying its special features, the presumption against harmful development or the need for careful assessment, did not amount to consideration in substance.
4. Ground 3 failed. Conditions must be adequate or reasonably suitable to achieve their objective. Condition 20 was directed to preventing harm to the integrity of the SAC, not to reproducing the Concordat or Marine Code. It was rationally open to the Authority to require a TAMP for approval because it retained control over the details.
5. Grounds 4 and 5 failed. Regulation 63(5) required certainty that the development would not adversely affect site integrity, subject to rationality review. Read fairly and as a whole, the materials treated disturbance of individual seals as relevant only insofar as it might affect the qualifying population and site integrity. The comments about public engagement did not introduce an impermissible balancing exercise.
6. Section 31(2A) did not preclude relief. The two errors were significant and could have affected the conditions or decision-making approach. The claim succeeded and the planning decision was quashed.