“NA3 Wolborough A site of approximately 120 hectares is allocated at Wolborough to deliver a sustainable, high quality mixed-use development which shall: a) include a comprehensive landscape and design led masterplan for the strategic site allocation, produced with meaningful and continued input and engagement from stakeholders; b) deliver 10 hectares of land for employment development, for office, general industrial or storage and distribution uses as appropriate to the site and its wider context, ensuring that there is also a mix of unit size to enable businesses to start up and expand; support will also be given to employment generating uses provided that they are compatible with the immediate surroundings and do not conflict with town centre uses; c) deliver at least 1,500 homes with a target of 20% affordable homes; d) provide social and community infrastructure including a youth centre, local shops, community facilities and a site of 5 hectares for a 420 place primary school including early years provision and a secondary school or other further education facility; e) provide a vehicular route connecting the A380 South Devon Link Road with the A381; f) create a network of green infrastructure that contributes to the overall strategic network; g) respect the setting of the parish church of St Mary the Virgin; h) provide a green buffer between development and Decoy woods; i) protect and enhance the Wolborough Fen Site of SpecialScientific Interest and flight routes and foraging areas of greaterhorseshoe bats (emphasis added); j) enhance or mitigate any impact on county wildlife sites, cirl bunting territories and barn owl sites; k) maximise opportunities for the generation of on-siterenewable energy at a domestic scale and investigateopportunities for community scale renewable energy generation (emphasis added); l) create areas for local food production; m) provide formal and informal recreation space; and n) a bespoke Greater Horseshoe Bat mitigation plan forWolborough must be submitted to and approved before planningpermission will be granted. The plan must demonstrate how thesite will be developed in order to sustain an adequate area of nondeveloped land as a functional part of the foraging area andstrategic flyway used by commuting Greater Horseshoe Batsassociated with the South Hams SAC. The plan mustdemonstrate that there will be no adverse effect on the SAC aloneor in combination with other plans or projects (emphasisadded).”
“… the above measures of mitigation would be sufficient to ensure that the proposed development would not, beyond scientific doubt, have an adverse effect on the integrity of the South Hams SAC, nor would it result in a diminishing of the quality and importance of the SSSI as an ecological habitat. I consider it reasonable to deal with these matters at an outline stage in the knowledge of the various survey work outcomes, the conclusions of the LP Examining Inspector, the terms of the proffered mitigation and securing conditions and obligations, and the opportunity to re-visit the assessment at the reserved matters stage. These measures, to be delivered through conditions and the S106 obligations, would comply with LP Policy NA3 i) and n) which seek to protect the relevant ecologically important habitats, along with Policies EN8, EN9 and EN10, the objective of which is the maintenance and enhancement of biodiversity as a key element of sustainable development.”
“448. .…. LP Policy NA3 a) seeks the submission of a comprehensive landscape and design led masterplan for the strategic site allocation, produced with meaningful and continued input and engagement from stakeholders. The submitted Illustrative Masterplan, in the context of an outline planning proposal which, essentially seeks to confirm the LP allocation for mixed use development covering the appeal site, as the largest section of that strategic commitment to growth, enshrined in the Development Plan, has come forward as a result of some pre-application consultation with the Council as well as the community. This appeal, and the consideration of the planning application before that, also gave an opportunity for parties to consider the conceptual development criteria and impacts. By the very evidence to the Inquiry stakeholders have engaged on the basis of the Illustrative Masterplan as an informing resource. The Design and Access Statement presents a direction of travel for the more detailed design of the scheme which, through a process of design evolution in which stakeholders should continue to be involved, would become apparent at the reserved matters stage. I consider that the spirit of LP Policy NA3 a) has been responded to and for this development to be delivered in a timely fashion to make the contribution that the Council anticipates from it in respect of the economic and social well-being of the District, progress forward must be made.”
“… the GHB Mitigation Plan, which will establish networks of connected and continuous habitat corridors extending across the appeal site and the wider landscape, preserving permeability across the landscape and allowing GHBs to continue commuting between parts of the SAC and outlying roosts. The corridors within the scheme will include reinforced hedgerows, which provide foraging grounds. There would also be a wetlands SUDS habitat that would provide further foraging habitats. A detailed lighting strategy to be delivered as part of a Reserved Matters applications would ensure minimal disturbance from light spill (IR428). The Secretary of State is content that these would all be secured by planning conditions.”
“An application under section 288 is not an opportunity for areview of the planning merits…..”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decisionmaker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development plan in the determination of planning matters…. By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission….. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted…. Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell L.J. observed in Loup v. Secretary of State for the Environment (1995) 71 P. & C.R. 175, 186: “What section 54A does not do is to tell the decisionmaker what weight to accord either to the development plan or to other material considerations.”
“116. … A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings[1995] 1 WLR 1037 , 1049, in which he identified three categories of consideration, as follows: “… [T]he judge speaks of a 'decision-maker who fails to take account of all and only those considerations material to his task'. It is important to bear in mind, however, … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.” 117. The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General[1981] NZLR 172 , 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”
“Pursuant to Article 191 of the Treaty on the Functioning of the European Union, Union policy on the environment is based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. Effects on the environment should be taken into account at theearliest possible stage in all the technical planning and decisiontaking processes”
“Member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effect on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects”
“(4) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.”
“an application for approval of a matter where the approval – (a) is required by or under a condition to which a planning permission is subject; and (b) must be obtained before all or part of the development permitted by the planning permission may be begun.”
“(2) Where it appears to the relevant planning authority that the environmental information already before them is adequate to assess the environmental effects of the development, they shall take that information into consideration in their decision for subsequent consent. (3) Where it appears to the relevant planning authority that the environmental information already before them is not adequate to assess the environmental effects of the development, they shall serve a notice seeking further information in accordance with regulation 22(1).”
“… the environmental statement, including any further information and any other information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development.”
“(a) that includes such information referred to in Part 1 of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part 2 of Schedule 4.”
“In cases where a consent procedure involves more than one stage (a multi-stage consent), for example, a first stage involving an outline planning permission and a second stage dealing with reserved matters, the effects of a project on the environment should normally be identified and assessed when determining the outline planning permission.”
“93. In my judgment, integrating environmental assessment into the domestic procedure for seeking outline planning permission, which acknowledges this need for flexibility for some kinds of building projects, is not contrary to the objectives of the Directive…. Provided the outline application has acknowledged the need for details of a project to evolve over a number of years, within clearly defined parameters, provided the environmental assessment has taken account of the need for evolution, within those parameters, and reflected the likely significant effects of such a flexible project in the environmental statement, and provided the local planning authority in granting outline planning permission imposes conditions to ensure that the process of evolution keeps within the parameters applied for and assessed, it is not accurate to equate the approval of reserved matters with “modifications” to the project. The project, as it evolves with the benefit of approvals of reserved matters, remains the same as the project which was assessed.”
“50. As provided in Art.2(1) of Directive 85/337, the environmental impact assessment must be carried out “before consent is given”. 51. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question “at the earliest possible stage” in the decision-making process. 52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.”
“22. It does not follow however, where planning consent for a development takes this form, that consideration must be given to the need for an EIA at each stage in the multi-consent process. The first recital in the Directive indicates that the competent authority must take account of the effects on the environment of the project in question at the earliest possible stage in all the technical planning and decision-making processes: see also Wells, para 51. In the case of a Schedule 2 development the competent authority must decide at the outset whether an EIA is needed because the development is likely to have significant effects on the environment. An application for outline planning permission should be accompanied by sufficient information to enable that question to be answered and an EIA, if needed, to be obtained and considered before outline planning permission is granted. The need for an EIA at the reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier stage. 23. If sufficient information is given at the outset it ought to be possible for the authority to determine whether the EIA which is obtained at that stage will take account of all the potential environmental effects that are likely to follow as consideration of the application proceeds through the multi-stage process. Conditions designed to ensure that the project remains strictly within the scope of that assessment will minimise the risk that those effects will not be identifiable until the stage when approval is sought for reserved matters. In cases of that kind it will normally be possible for the competent authority to treat the EIA at the outline stage as sufficient for the purposes of granting a multi-stage consent for the development: R v Rochdale Metropolitan Borough Council, Ex p Milne(2001) 81 P & CR 365 , para 114, per Sullivan J. 24. As the European Court said in para 48 of its judgment, however, the competent authority may be obliged in some circumstances to carry out an EIA even after outline planning permission has been granted. This is because it is not possible to eliminate entirely the possibility that it will not become apparent until a later stage in the multi-stage consent process that the project is likely to have significant effects on the environment. In that event account will have be taken of all the aspects of the project which have not yet been assessed or which have been identified for the first time as requiring an assessment. This may be because the need for an EIA was overlooked at the outline stage, or it may be because a detailed description of the proposal to the extent necessary to obtain approval of reserved matters has revealed that the development may have significant effects on the environment that were not anticipated earlier. In that event account will have to be taken of all the aspects of the project that are likely to have significant effects on the environment which have not yet been assessed or which have been identified for the first time as requiring an assessment. The flaw in the 1988 Regulations was that they did not provide for an EIA at the reserved matters stage in any circumstances. 25. In my opinion it is plain that the appellant is entitled to a declaration that by precluding any consideration for the need for an EIA at the stage when, following the grant of outline planning permission for the development, consideration is being given to an application for approval of reserved matters the 1988 Regulations failed fully and properly to implement the Directive.”
“14. InCase C-2/07 Abraham v Wallonia [2008] Env. L.R. 32, the European Court of Justice emphasized (in paragraph 26 of its judgment) that an EIA “must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment …”
“142. It is common ground that the effect of article 5(2) and (3) is to confer on the Secretary of State a discretion regarding the information to include in an environmental report. It is also common ground that the approach to be followed in deciding whether the Secretary of State has exercised his discretion unlawfully for the purposes of that provision is that established in relation to the adequacy of an environmental statement when applying the EIA Directive, as set out by Sullivan J in R (Blewett) v Derbyshire County Council[2003] EWHC 2775 (Admin) ; [2004] Env LR 29 (“Blewett”). Blewett has been consistently followed in relation to judicial review of the adequacy of environmental statements produced for the purposes of environmental assessment under the EIA Directive and endorsed at the highest level. In Shadwell Estates Ltd v Breckland District Council[2013] EWHC 12 (Admin) Beatson J held that the Blewett approach was also applicable in relation to the adequacy of an environmental report under the SEA Directive. The Divisional Court and the Court of Appeal in the present case endorsed this view (at paras 401-435 and paras 126-144 of their respective judgments). The respondents have not challenged this and we see no reason to question the conclusion of the courts below on this issue. 143. As Sullivan J held in Blewett (paras 32-33), where a public authority has the function of deciding whether to grant planning permission for a project calling for an environmental impact assessment under the EIA Directive and the EIA Regulations, it is for that authority to decide whether the information contained in the document presented as an environmental statement is sufficient to meet the requirements of the Directive, and its decision is subject to review on normal Wednesbury principles. Sullivan J observed (para 39) that the process of requiring that the environmental statement is publicised and of public consultation “gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies”
“… The [EIA] Regulations should be interpreted as a whole and in a common-sense way. The requirement that ‘an [environmental impact assessment] application’ (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council, Ex p Brown[2000] 1 AC 397 , at p 404, the purpose is ‘to ensure that planning decisions which may affect the environment are made on the basis of full information’. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations …, but they are likely to be few and far between.”
“The court’s role in ensuring that an authority - here the Secretary of State - has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information ‘may reasonably be required’ when taking into account the considerations referred to - first, ‘current knowledge and methods of assessment’; second, ‘the contents and level of detail in the plan or programme’; third, ‘its stage in the decision-making process’; and fourth ‘the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment’. These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided. It is not for the court to fix this range of judgment more tightly than is necessary. The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional ‘Wednesbury’ standard of review - as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision-maker itself. This would exceed the proper remit of the court.” 145. The EIA Directive and the SEA Directive are, of course, EU legislative instruments and their application is governed by EU law. However, as the Court of Appeal observed (paras 134135), the type of complex assessment required in compiling an environmental report for the purposes of environmental assessment is an area where domestic public law principles have the same effect as the parallel requirements of EU law. As Advocate General Léger stated in his opinion in Upjohn Ltd vLicensing Authority Established Under Medicines Act 1968 (Case C-120/97 )[1999] 1 WLR 927 , para 50, “[the] court has always taken the view that when an authority is required, in the exercise of its functions, to undertake complex assessments, a limited judicial review of the action which that authority alone is entitled to perform must be exercised, since otherwise that authority's freedom of action would be definitively paralysed …”. 146. The appropriateness of this approach is reinforced in the present context, having regard to the function which an environmental report is supposed to fulfil under the scheme of the SEA Directive. It is intended that such a report should inform the public by providing an appropriate and comprehensible explanation of the relevant policy context for a proposed strategic plan or project to enable them to provide comments thereon, and in particular to suggest reasonable alternatives by which the public need for development in accordance with the proposed plan or project could be met. As article 6(2) states, the public is to have an early and “effective” opportunity to express their opinion on a proposed plan or programme. It is implicit in this objective that the public authority responsible for promulgating an environmental report should have a significant editorial discretion in compiling the report to ensure that it is properly focused on the key environmental and other factors which might have a bearing on the proposed plan or project. Absent such a discretion, there would be a risk that public authorities would adopt an excessively defensive approach to drafting environmental reports, leading to the reports being excessively burdened with irrelevant or unfocused information which would undermine their utility in informing the general public in such a way that the public is able to understand the key issues and comment on them. In the sort of complex environmental report required in relation to a major project like the NWR Scheme, there is a real danger that defensive drafting by the Secretary of State to include reference to a wide range of considerations which he did not consider to be helpful or appropriate in the context of the decision to be taken would mean that the public would be drowned in unhelpful detail and would lose sight of the wood for the trees, and their ability to comment effectively during the consultation phase would be undermined.” “… The [EIA] Regulations should be interpreted as a whole and in a common-sense way. The requirement that ‘an [environmental impact assessment] application’ (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council, Ex p Brown[2000] 1 AC 397 , at p 404, the purpose is ‘to ensure that planning decisions which may affect the environment are made on the basis of full information’. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations …, but they are likely to be few and far between.” “The court’s role in ensuring that an authority - here the Secretary of State - has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information ‘may reasonably be required’ when taking into account the considerations referred to - first, ‘current knowledge and methods of assessment’; second, ‘the contents and level of detail in the plan or programme’; third, ‘its stage in the decision-making process’; and fourth ‘the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment’. These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided. It is not for the court to fix this range of judgment more tightly than is necessary. The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional ‘Wednesbury’ standard of review - as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision-maker itself. This would exceed the proper remit of the court.”
“deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA Regulations”
“….the challenge in Squire succeeded because of a “patent defect” in the ES and EIA (Plan B Earth at [137]). It was plainly irrational for the local authority to have based their decision on an EIA which had completely failed to address an “obviously material consideration” (R (Blewett) v Derbyshire County Council [2004] Env. LR. 29 and Gathercole v Suffolk County Council[2020] EWCA Civ 1179 at [53] to [55])….”
“2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated …. 3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. 4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”
“(1) The assessment provisions apply in relation to— ….. (c) granting planning permission, or upholding a decision of the local planning authority to grant planning permission… on determining an appeal under section 78 of that Act (right to appeal against planning decisions) in respect of such an application; on an application under Part 3 of the TCPA 1990 (control over development); … (2) Where the assessment provisions apply, the competent authority may, if it considers that any adverse effects of the plan or project on the integrity of a European site or a European offshore marine site would be avoided if the planning permission were subject to conditions or limitations, grant planning permission, or, as the case may be, take action which results in planning permission being granted or deemed to be granted, subject to those conditions or limitations. (3) Where the assessment provisions apply, outline planning permission must not be granted unless the competent authority is satisfied (whether by reason of the conditions and limitations to which the outline planning permission is to be made subject, or otherwise) that no development likely adversely to affect the integrity of a European site or a European offshore marine site could be carried out under the permission, whether before or after obtaining approval of any reserved matters. (4) In paragraph (3), “outline planning permission” and “reserved matters” have the same meanings as in section 92 of the TCPA 1990 (outline planning permission).”
“52. As regards the concept of ‘appropriate assessment’ within the meaning of Article 6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment. 53. None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives. 54. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field… ….. 56. It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned.”
“33. Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications of a plan or project for the site concerned implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is so when there is no reasonable scientific doubt as to the absence of such effects (judgment of8 November 2016 , Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 42 and the case-law cited). 34. The assessment carried out under that provision may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of dispelling all reasonable scientific doubt as to the effects of the proposed works on the protected area concerned (judgment of25 July 2018 , Grace and Sweetman, C‑164/17, EU:C:2018:593, paragraph 39 and the case-law cited).”
“41. The process envisaged by article 6(3) should not be overcomplicated. As Richards LJ points out, in cases where it is not obvious, the competent authority will consider whether the “trigger” for appropriate assessment is met (and see paras 41-43 of Waddenzee). But this informal threshold decision is not to be confused with a formal “screening opinion” in the EIA sense. The operative words are those of the Habitats Directive itself. All that is required is that, in a case where the authority has found there to be a risk of significant adverse effects to a protected site, there should be an “appropriate assessment”. “Appropriate” is not a technical term. It indicates no more than that the assessment should be appropriate to the task in hand: that task being to satisfy the responsible authority that the project “will not adversely affect the integrity of the site concerned” taking account of the matters set in the article. As the court itself indicated in Waddenzee the context implies a high standard of investigation. However, as Advocate General Kokott said in Waddenzee [2005] All ER (EC) 353, para 107: “the necessary certainty cannot be construed as meaning absolute certainty since that is almost impossible to attain. Instead, it is clear from the second sentence of article 6(3) of the Habitats Directive that the competent authorities must take a decision having assessed all the relevant information which is set out in particular in the appropriate assessment. The conclusion of this assessment is, of necessity, subjective in nature. Therefore, the competent authorities can, from their point of view, be certain that there will be no adverse effects even though, from an objective point of view, there is no absolute certainty.”
“8. The proper approach to the Habitats Directive has been considered in a number of cases at European and domestic level, which establish the following propositions: (1) The environmental protection mechanism in art.6(3) is triggered where the plan or project is likely to have a significant effect on the site’s conservation objectives: Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (C-127/02) EU:C:2004:482; [2005] 2 C.M.L.R. 31 at [42] (“Waddenzee”). (2) In the light of the precautionary principle, a project is “likely to have a significant effect” so as to require an appropriate assessment if the risk cannot be excluded on the basis of objective information: Waddenzee [2005] 2 C.M.L.R. 31 at [44]. (3) As to the appropriate assessment, “appropriate” indicates no more than that the assessment should be appropriate to the task in hand, that task being to satisfy the responsible authority that the project will not adversely affect the integrity of the site concerned. It requires a high standard of investigation, but the issue ultimately rests on the judgement of the authority: R. (on the application of Champion) v North Norfolk DC[2015] UKSC 52 , Lord Carnwath at [41] (“Champion”). (4) The question for the authority carrying out the assessment is: “What will happen to the site if this plan or project goes ahead; and is that consistent with maintaining or restoring the favourable conservation status of the habitat or species concerned?”: Sweetman v An Bord Pleanà la (C-258/11) EU:C:2013:220; [2013] 3 C.M.L.R. 16, Advocate General at para. 50. (5) Following assessment, the project in question may only be approved if the authority is convinced that it will not adversely affect the integrity of the site concerned. Where doubt remains, authorisation will have to be refused: Waddenzee [2005] 2 C.M.L.R. 31 at [56]–[57]. (6) Absolute certainty is not required. If no certainty can be established, having exhausted all scientific means and sources it will be necessary to work with probabilities and estimates, which must be identified and reasoned: Waddenzee, Advocate General at paras 107 and 97, endorsed in Champion[2015] UKSC 52 at [41] and by Sales LJ in Smyth v Secretary of State for Communities and Local Government[2015] EWCA Civ 174 at [78] (“Smyth”). (7) The decision-maker must consider secured mitigation and evidence about its effectiveness: European Commission v Germany (C-142/16) EU:C:2017:30 at [38]. (8) It would require some cogent explanation if the decisionmaker had chosen not to give considerable weight to the views of the appropriate nature conservation body: R. (Hart District Council) v Secretary of State for Communities and Local Government[2008] EWHC 1204 (Admin) at [49]. (9) The relevant standard of review by the court is the Wednesbury rationality standard, and not a more intensive standard of review: Smyth[2015] EWCA Civ 174 at [80].”
“78. A further issue arising from Mr Jones’s submissions concerns the standard of review by a national court supervising the compliance by a relevant competent authority with the legal requirements in Article 6(3) of the Habitats Directive. Although the legal test under each limb of Article 6(3) is a demanding one, requiring a strict precautionary approach to be followed, it also clearly requires evaluative judgments to be made, having regard to many varied factors and considerations. As AG Kokott explained in para. 107 of her Opinion in Waddenzee, the conclusion to be reached under an “appropriate assessment” under the second limb of Article 6(3) cannot realistically require the attainment of absolute certainty that there will be no adverse effects; the assessment required “is, of necessity, subjective in nature”
“397. Given the size of the appeal site, the nature and scale of the proposed development and the potential impact on environmental resources, an Environmental Statement (ES) was produced for the proposed development. It sprang from previous work included in the environmental assessment relevant to the LP, although was more detailed in respect of being site specific. Various inadequacies have been alleged in respect of the content and coverage of the ES. It has been supplemented through this appeal with additional clarification and evidence. A further Addendum was submitted partly dealing with Air Quality and this too has been taken into account in the consideration of this appeal. I am also conscious that this is a site which has already been through a LP Examination and subjected to a raft of environmental testing, at that stage, for the Allocation to be adopted. The ES should not be used as a means of delaying already tested development by tying it up in legal knots. The ES should be a proportionate response to the scale and nature of development, its location, as well as considering what has gone before in respect of environmental assessment and decisions taken. The Council did not allege any deficiency in the generality of the environmental assessments submitted and subsequently supplemented. They were able to come to reasoned conclusions on the environmental effects of the appeal proposal save for the impact upon the GHBs which this Report will come to. I too consider the submitted environmental assessments to be sufficient to appropriately inform this decision.”
“Having taken account of the Inspector’s comments at IR397, the Secretary of State is satisfied that the Environmental Statement and other additional information provided complies with the above Regulations and that sufficient information has been provided for him to assess the environmental impact of the proposal.”
“Does the LP address issues of climate change satisfactorily? Is Policy EN3 regarding carbon reduction justified and consistent with national policy in the NPPF? Will increased employment lead to more very unclear commuting by car? 16. The overall strategy would create the most sustainable pattern of development through urban extensions. It would reduce travel by car through encouraging walking and cycling and would enable more effective and efficient public transport services. Policy EN3 is intended to ensure implementation of Policy S7, which seeks to achieve a reduction of carbon emissions in line with the national target in theClimate Change Act 2008 of an 80% reduction between 1990 and 2050… .”
“As set out at IR443, the appeal site is in a location accessible to services and facilities described as “highly sustainable” and the encouragement of cycling, walking, implementation of the Travel Plan, along with the provision of the new circular bus route, would provide options for other modes of transport other than the car…”
“The likely impact of the proposed NA3 Wolborough development and associated mitigation, with particular reference to greater horseshoe bats of the South Hams Special Area of Conservation” which noted that: “The mitigation plan provided in the HRA is again vague and lacks important detail. ‘Dark corridors’ are proposed across the site for commuting bats but these are narrow and close to roads, footpaths and buildings and are likely to be subject to light, noise and recreational disturbance. Effective mitigation for light pollution will be essential, but very little information is provided. The corridors will also be severed in multiple places by access roads, which may act as barriers or create a collision mortality risk for bats attempting to cross them. Most of the proposed mitigation measures have not been proven to be effective, such as plantings and raised embankments to guide bats over roads, temporary guides such as Heras fencing or ‘dead hedging’ and new or relocated roosting structures. Where new plantings or habitat are proposed, little consideration is given to the time it will take for them to become established or the need for them to be functional in advance of any impacts (i.e. prior to construction commencing). It is also not clear whether mitigation measures, such as corridors, will be integrated with those in the adjacent NA3 Wolborough development or existing habitats in the wider landscape….”
“420. The appellants’ bat surveys indicate that the areas of wooded edge and hedgerow habitats together with areas of grazed pasture are likely to be used on occasion by individual GHBs. However, based on the normal foraging range of some 4 km, the distance between the component SAC parts and the appeal site, and the nature of the GHB actual flight distances, it places any claimed importance of the site as a likely foraging area in doubt265. Therefore, it is reasonable to conclude that the appeal site does not lie within any defined sustenance zone in relation to any European designated site. 421. The concept of Strategic Flyways (SF) was considered by the parties and one was identified running westwards along the southern boundary of the appeal site. However, the identification of this SF was not based on site-specific radiotracking data, but on assumed occurrences. This reduces the reliance which can be placed on any value which could be ascribed to the SF for the GHB population specific to the SAC. More recent guidance identifies that outside of sustenance zones GHBs are dispersed widely and in low numbers using a complex network of commuting routes, rather than just a few key SFs. New draft guidance will replace SF with Landscape Connectivity Zones which coalesces the entire network of flyways in recognition of the need to maintain permeability across the SAC landscape and is based on a better understanding that GHBs are widely dispersed. The appeal site would be outside of the 4 km Sustenance Zone but within the Landscape Connectivity Zone so 150. would still trigger a detailed assessment. This emerging guidance would further reduce any reliance on SF as a restrictive feature in development terms” 422. It seems to me that currently the value of the appeal site for GHBs is as part of a more extensive network of ‘pathways’ which allows the bats to travel between roost sites across the South Devon countryside which could include journeys to and from the five component parts of the SAC from more distant roosts such as Conitor Copse. 423. One of the main issues for the Council and Natural England in respect of the body of evidence already submitted by the appellants to comply with the Habitats Directive and requirements of the Habitat Regulations, was that the bat survey work dated back to 2013-2014 and was considered insufficient to inform a Habitat Regulation Assessment. However, the Council had commissioned in 2019 their own Bat Survey dated November 2019, which was submitted in evidence and can be considered a reliable and up to date GHB survey based upon best practice. Natural England was consulted on survey scope and methodology. 424. The most recent Bat Survey dated November 2019 concludes that bats were observed to favour substantial hedgerows and tree lines (especially adjacent to pasture), woodland edge and dark lane habitats. Key areas included Stonemans Hill to the west of the appeal site, Priory Road to the south and hedgerow networks linking these with Wolborough Barton and Decoy Brake woodland. The fields and hedgerows between the woodland and the industrial estate off Kingskerswell Road is a current key area and beyond the boundaries of the appeal site. These areas mainly bound the appeal site but are established routes upon which the proposed development would not impact. No GHB roosts were identified on the appeal site in this recent survey and this confirms the outcome in this regard of the 2013-2014 survey. The Illustrative Masterplan has incorporated a route along the southern boundary which would allow for a number of pathways along hedgerows and lanes along which the GHBs can fly and forage. The ability of bats to fly along the identified main route within the Bat Survey 2019 would be retained. Green corridors could also be incorporated to enable GHBs and other bats to access transient foraging areas within Wolborough Fen and the woodland of Decoy Country Park. This would allow bats to continue to move through the landscape unimpeded and with access to impromptu feeding areas. 425. At the time the LP Examining Inspector was considering LP Policy NA3 the concept of the SF was unchallenged. The Examining Inspector reported that whilst a bat flyway ran along the southern boundary of the site the Council’s expert witness indicated that a buffer of green space did not necessarily have to be 500m wide to be effective and that there would be adequate space for the flyway to be properly protected. Natural England at the LP Examination stage stated that the Plan proposals would provide for satisfactory protection of the bats and raised no objection to the allocation. 426. The Examining Inspector’s conclusions set out that the network of commuting routes/pathways should be wide enough to allow for sufficient habitat along its path which GHBs can traverse. The 250 metres wide main pathway achievable within the development parameters would serve as an effective bat highway. 427. On the basis of the outcomes of the most recent bat survey the Council is content that in so far as assessing if the competent authority now has sufficient information to be satisfied that no development likely to adversely affect the integrity of the South Hams SAC can be carried out under the outline permission consistent with the provisions of the Habitats Regulations. Natural England’s position has been that in the absence of an up to date bat survey there would be insufficient information on which to complete an assessment to conclude that there would be no adverse effect on the integrity of the site. Having evaluated the Bat Survey 2019 Natural England considered some comparison work necessary between the surveys from 20132014 and that of 2019 to ascertain whether the mitigation measures proffered in the GHB Mitigation Plan would still stand as being relevant. However, as the Council highlightthere are some variations in the survey protocol/analysis between the surveys which make such a comparison of limited value. The overall results of the 2019 survey, in the context of the results from the 2013-2014 survey would be sufficiently robust to inform an AA and mitigation at outline stage. 428. The approach of the GHB Mitigation Plan is to establish networks of connected and continuous habitat corridors extending across the appeal site and to the wider landscape. The retention and enhancement of green space is also key to the strategy. The Plan includes the retention of a green corridor of some 250 metres in width which would preserve the permeability across the landscape for the GHBs allowing commuting between the parts of the SAC and outlying roosts. The corridors within the scheme include reinforced hedgerows which are valuable commuting features for GHBs as well as providing habitats for foraging. The wetland SUDS habitat, including a marshy/meadow grassland and orchard areas, would also provide valuable foraging habitat. The detailed lighting strategy to be included at reserved matters stage would ensure minimal disturbance to GHB foraging and commuting habitat as a result of light spill. 429. The up to date Bat Survey has allowed the Council to move their position to one of agreeing that matters in respect of the following can be agreed at reserved matters stage with the imposition of conditions on any grant of outline permission to secure those details which would in essence only come about through the detailed design of the scheme: route of the new Spine Road, lighting assessment, identification and retention of GHB corridors and other GHB habitats to be overlaid with the finalised Masterplan. The Council are now content that the competent authority has sufficient information to be satisfied that no development likely to adversely affect the integrity of the South Hams SAC could be carried out at this outline stage consistent with the provisions of the Habitats Regulations.”
“… the above measures of mitigation would be sufficient to ensure that the proposed development would not, beyond scientific doubt, have an adverse effect on the integrity of the South Hams SAC, nor would it result in a diminishing of the quality and importance of the SSSI as an ecological habitat. I consider it reasonable to deal with these matters at an outline stage in the knowledge of the various survey work outcomes, the conclusions of the LP Examining Inspector, the terms of the proffered mitigation and securing conditions and obligations, and the opportunity to re-visit the assessment at the reserved matters stage. These measures, to be delivered through conditions and the S106 obligations, would comply with LP Policy NA3 i) and n) which seek to protect the relevant ecologically important habitats, along with Policies EN8, EN9 and EN10, the objective of which is the maintenance and enhancement of biodiversity as a key element of sustainable development.”
“76. Natural England also recommended provision for bespoke settlement mitigation plans in three areas (excluding the NewtonAbbot area which affects the Claimant), and the Council agreed to do this. Paragraph 5.29 of the Plan provided: “Bespoke mitigation plans will be provided at the settlement level for Chudleigh, Bovey Tracey and Kingsteignton to provide a clear policy basis for developers who bring forward development in these locations, in order to ensure the South Hams SAC is protected with respect to in-combinations impacts from developments proposed in the Plan.””
“there are a range of impact types including land take, light pollution, severance of flyways and possible changes to management of remaining farmland. Appropriate mitigation will include lighting control, hedge protection and financial or other contribution to habitat enhancement.”
“14. We accept it may be necessary to rely upon “down the line” assessment for at least some policies and proposals. The draft Natural England guidance sets out the criteria under which lower tier assessment may be acceptable and we would encourage you to check that these apply wherever lower tier assessment is considered. 15. One of the criteria is whether at lower tier stage there would be freedom to change the nature and/or scale and/or location of the proposal in order to avoid adverse effects….”
“Those allocations assessed as likely to impact the South Hams SAC were assessed by a suitable expert, who advised on how to avoid harm to the bats. This included redrawing of some boundaries, dropping of one potential additional allocation and specific survey/mitigation measures recommendations for others. Specific reference is made to survey/mitigation requirements in key proposals. Natural England’s South Hams SAC – guidance for planners’ (‘GHB protocol’ in screening table) will be followed. None of the remaining Allocations are assessed as causing impacts that would be impossible to mitigate.”
“A bespoke GHB mitigation plan … must be submitted to and approved before planning permission will be granted. The plan must demonstrate how the site will be developed in order to sustain an adequate area of non-developed land as a functional part of the local foraging area and as part of a strategic flyway used by commuting GHBs associated with the South Hams SAC. The plan must demonstrate that there will be no adverse effect on the SAC alone or in combination with other plans or projects.”
“With the above measures in place … it is advised that the Teignbridge Local Plan can be concluded to be in accordance with the requirements of the Habitats Regulations and parent European Directives.”
“There exists a risk of potential in-combination effects of development in Teignbridge and in neighbouring authorities with responsibilities for the South Hams SAC, on the integrity of bat habitat including roosts, flyways and areas for foraging. Principally this is through severance and light pollution. The HRA indicates that potential in-combination effects on the South Hams SAC, through development in Teignbridge and in neighbouring planning authorities (Dartmoor National Park, Torbay and South Hams), can be mitigated through the introduction of a landscape scale Greater Horseshoe Mitigation Strategy. This should be prepared and published in collaboration with other planning authorities with responsibilities for the South Hams SAC as a supplementary planning document. The Strategy can replace relevant guidance by Natural England and identify the requirements for a provision of measures necessary to mitigate the likely affects (sic) of all types of developments (both alone and in combination with other projects) in all areas where there could be an adverse effect on the integrity of the South Hams SAC. The Council has proposed minor changes to the … submission which make clear the requirement for the Greater Horseshoe Bat Mitigation Strategy and securing bespoke greater horseshoe bat mitigation plans for large-scale development proposals. The Teignbridge Green Infrastructure Strategy (July 2011) has identified a series of green corridors that could support and enhance the main strategic flyways around Newton Abbot, Kingsteignton, Kingskerswell and Bovey Tracey.”
“15. A raft of policies, EN8 – EN12, are directed specifically at protecting biodiversity, important habitats, priority species and flora. Natural England raised no objection to the broad approach of these policies. The detailed policies for site allocations include appropriate criteria to mitigate and/or offset any impact on protected species or habitats, with particular reference to bats, given the proximity of the South Hams SAC … On balance, subject to provisions relating to some specific sites, I agree the benefits of new housing outweigh the environmental disadvantages at those particular locations.” disadvantages at those particular locations.”
“European Wildlife Sites including…South Hams…will be protected. Development that is likely to have a significant effect on the integrity of a European Wildlife Site will be subject to assessment under theHabitats Regulations 2010 and will not be permitted unless adverse effects can be fully mitigated and/or compensated. Further specific requirements are set out below. Roosts, strategic flyways and sustenance zones for greater horseshoe bats, which constitute the special interest of the South Hams Special Area for Conservation will be protected, and where possible, enhanced to reflect the specific requirements of that species. In locations within or adjoining such roosts, strategic flyways and sustenance zones, there may be the need to include protection zones or removed certain permitted development rights (particularly lighting and wind turbines) to protect their continued use… …A Habitat Regulations Assessment (HRA), required under the Habitats Directive, has been undertaken on the policies within the Local Plan to ensure there will not be an adverse effect on any such site. Additionally, it is a requirement under the Habitat Regulations that any development proposals which may have an impact on a European Site are subject to further assessment in order to avoid harm to those sites.”
“To protect and expand the presence of legally protected and S41 List priority species, development which would be likely to directly or indirectly harm such a species will not be permitted unless: … e) for legally protected species favourable conservation status is maintained.”
“…The Council will: … e) ensure that the provision of new infrastructure will only be approved where the planning authority has ascertained that it would not adversely affect the integrity of any European sites; and f) all mitigation for impacts to European sites shall be considered as critical in the Infrastructure Delivery Plan and sufficient contributions, to ensure that provisions remain in the long-term, will be taken from the CIL pot for Habitat Regulations mitigation measures before funding is used for other types of infrastructure.”
“Bespoke mitigation plans will be provided at the settlement level for Chudleigh, Bovey Tracey and Kingsteignton to provide a clear policy basis for developers who bring forward development in these locations, in order to ensure the South Hams SAC is protected with respect to in-combinations impacts from developments proposed in the Plan.”
“The greater horseshoe bat is a European protected species … [The] caves are a designated Special Area of Conservation and have very strong protection (as set out above). This species has particular needs and there are particular roosts, flyways and foraging areas which they use. They are very sensitive to changes in these areas, and therefore it is important that the areas are identified and protected, and if possible their potential enhanced. Further, more detailed, guidance has been prepared by Natural England …. The Council, in collaboration with the other planning authorities with responsibilities for the South Hams SAC, will prepare and publish, as a supplementary planning document (SPD) a Greater Horseshoe Bat Mitigation Strategy. This will eventually replace the above guidance published by Natural England. The proposed Mitigation Strategy SPD will identify the requirements for and provision of measures necessary to mitigate the likely effects of all types of development (both alone and in combination with other projects) in all areas where there could be an adverse effect on the integrity of the South Hams SAC.”
“The discussion of all of the issues throughout this report indicates that the Plan is reasonably robust and has sufficient flexibility to deliver the outcomes intended, particularly with regard to housing and employment growth, together with continued environmental protection.”
“For some proposals, it will be necessary for a bespoke Greater Horseshoe Bat Mitigation Plan to be prepared, submitted and agreed prior to the grant of anyplanning permission [my emphasis]. Such plans will need to demonstrate with very high levels of certainty that there will be no adverse effect on the integrity of the South Hams SAC.”
“Potential ‘in-combination’ effects on the South Hams SAC will be mitigated through the preparation of a landscape scale Greater Horseshoe Bat Mitigation Strategy. Any applications received in advance of the completion of this work will have to consider the in-combination impacts which are likely to require greater consideration of other plans and projects and greater evidence base.”
“A bespoke Greater Horseshoe Bat mitigation plan for [the site] must be submitted to and approved before planning permission will be granted. The plan must demonstrate how the site will be developed in order to sustain an adequate area of non-developed land as a functional part of the foraging area within the SAC sustenance zone and as part of a strategic flyway used by commuting Greater Horseshoe Bats associated with the South Hams SAC. The plan must demonstrate that there will be no adverse effect on the SAC alone or in combination with other plans or projects.”
“A Habitat Regulations Assessment (HRA), required under the Habitats Directive, has been undertaken on the policies within the Local Plan to ensure that there will not be an adverse impact on any such site. Additionally, it is a requirement under the Habitat Regulations that any development proposals which may have an impact on a European Site are subject to further assessment in order to avoid harm to those sites.”
“Further, more detailed, guidance has been prepared by Natural England, the ‘South Hams SAC – Greater Horseshoe Bat 246. Consultation Zone Planning Guidance’ which indicates the location of these zones. The Council, in collaboration with the other planning authorities with responsibilities for the South Hams SAC, will prepare and publish, as a supplementary planning document (SPD), a Greater Horseshoe Bat Mitigation Strategy. This will eventually replace the above guidance published by Natural England. The proposed Mitigation Strategy SPD will identify the requirements for and provision of measures necessary to mitigate the likely affects of all types of developments (both alone and in combination with other projects) in all areas where there could be an adverse affect on the integrity of the South Hams SAC. Bespoke mitigation plans will be produced at the settlement level for Chudleigh, Bovey Tracey and Kingsteignton to provide a clear policy basis for developers who bring forward development in these locations, in order to ensure the South Hams SAC is protected with respect to in-combinations impacts from development proposed in the Plan.”