Summary

The CJEU in People Over Wind^[1] on the lawful approach to HRA screening has been tested again in the UK in two further cases.  The ‘Canterbury and Crondall’ cases which are examined in this blog show that, domestically, the Courts are taking a pragmatic approach to the People Over Wind ruling and that in cases of non-compliance, they are willing to exercise discretion on a case by case basis. 

Introduction

In my blog piece The Fall-out of People Over Wind last year, I considered Langton^[2], the first High Court judgment to grapple directly with the CJEU’s ruling in People Over Wind that measures to avoid or reduce harmful effects on an European Site should not be taken into account at the screening stage of Habitat Regulations Assessment (HRA). One of my conclusions was that, whilst Langton suggested an immediate willingness on the part of High Court to adopt a pragmatic approach to the interpretation of People Over Wind, the question of HRA screening will inevitably be tested further in the Courts. This blog considers a notable example of such further testing - and the Court’s ongoing pragmatism - in a “two for one” judgment^[3] delivered last month in what the judgment itself referred to as the Canterbury and Crondall cases.

The Canterbury case

The Canterbury case was a legal challenge by Canterbury City Council (“CCC”) to the Secretary of State’s decision to grant planning permission on appeal for a new mixed use neighbourhood with up to 800 dwellings. 

The site was in the vicinity of a number of European Sites, most notably the Thanet Coast and Sandwich Bay SPA. Whilst it was acknowledged that the bird populations within the SPA could be disturbed by increased visitor numbers from the proposed development, the developer’s HRA Screening Statement screened out any adverse effect on the European Site through ongoing access management measures and the developer’s proposed financial contribution to the same.  Importantly, the proposed mitigation was uncontentious and received Natural England’s support. As such an appropriate assessment was not required.  

CCC subsequently challenged the appeal decision on two grounds, one of which was that, in light of People Over Wind, the Secretary of State had erred in law by failing to carry out an appropriate assessment.

The Crondall case

The Crondall case had similar facts:  The case was a legal challenge by Crondall Parish Council (“CPC”) to another appeal decision by the Secretary of State, this time to allow the redevelopment of Broden Stables on the edge of Crondall village in Hampshire.  Since the site was in the zone of influence of Thames Basin Heaths SPA, a financial contribution was proposed in accordance with established strategies to mitigate recreational pressures from the proposed development.  The Inspector accepted this position, recording that the proposed measures would safeguard against adverse effects on the SPA and that the proposal would not therefore be contrary to the Habitats Regulations.

CPC’s claim proceeded on a number of grounds, the first of which was the failure to undertake an appropriate assessment in circumstances where this had been screened out by taking into account mitigation measures.

The High Court’s judgment on the HRA screening grounds

In both cases the Secretary of State conceded the error of law in the approach to HRA screening but contended that the decision would have been the same even if an appropriate assessment had been carried out as it should have been. Both Claimants argued against this. 

Interestingly, despite the similar facts, the Court came to a different judgement in each case. The Canterbury claim was dismissed on the basis that the Court was satisfied that the decision would have been the same even if an appropriate assessment had been carried out, whilst the Crondall case resulted in the quashing of the Secretary of State’s decision because the Court considered that the same test was not met.  Key factors taken into account by the Court were:

• The comprehensive and detailed nature of the information provided to support the HRA Screening Statement in the Canterbury case;
• The fact that the material was the subject of extensive consultation through the planning process; and
• The fact that the proposed mitigation measures were not in contention in the Canterbury case, whereas they were in the Crondall case.

Comment

What is striking about the Canterbury and Crondall cases is that, even though there was a legal error in both cases in the failure to undertake an appropriate assessment under the Habitat Regulations, the Court was still willing to exercise its discretion not to quash on the grounds of that illegality in, at least, the Canterbury case.  This shows that failure to comply with the requirements of People Over Wind will not necessarily be fatal to a decision and, in that sense, it is another example of the Court adopting a pragmatic approach when applying People Over Wind domestically.

That is not to say, however, that the Canterbury case provides a blue-print for a route around People Over Wind; indeed, it would be a high risk strategy akin to no strategy at all to ignore People Over Wind and proceed without an appropriate assessment where one is required and then rely on the Court saving the day later by reaching the view that the decision would have been the same anyway.  That discretion was not exercised in the Crondall case, should be a sufficient warning to avoid such a strategy, but the Court itself was at pains to say that, before a decision could be reached that quashing was inappropriate, “a careful and fact-sensitive examination of the available evidence” would be “essential” and that this would inevitably be a case-by-case exercise.

It is also worth noting that the key distinction between the two cases that seemed to influence the Court in its final decision was the fact that the proposed mitigation was uncontroversial in the Canterbury case, whereas in the Crondall case there were contentions about its adequacy.  In other words, cases where there are any doubts the efficacy of the measures being relied on in the HRA screening will not be saved by the Court exercising its discretion in this way.

A tale of two HRA screenings then: For one it was the best of times; for the other it was the worst of times.

[1]         Case C-323/17

[2]         R (Langton) v Secretary of State for Environment, Food and Rural Affairs and Natural

England [2018] EWHC 2190 (Admin)

[3]         [2019] EWHC 1211 (Admin)