Staunch Campaign Limited, R (on the application of) v North Northamptonshire Council [2026] EWHC 1962 (Admin)
[5]Mitigating significant effects Within the Upper Nene Valley Gravel Pits SPA it will be very difficult to implement mitigation for proposals causing physical loss or fragmentation of habitats. Please note that providing new habitat outside the SPA boundary (even adjacent to it) is considered compensation, not mitigation. Likewise, following a European Court of Justice ruling, [Briels] habitat creation inside the SPA boundary cannot be considered mitigation. In rare circumstances, habitat enhancement inside the SPA may offer mitigation, but all such proposals must be discussed with Natural England at the earliest possible stage. Under the HRA process, compensation for damage can only be considered – and the plan or project approved – if it can first be shown that there are no alternative solutions and there are also imperative reasons of overriding public interest. Such cases are rare.’ 110 The Claimant also draws attention to Appendix 1 of the SPD, which describes the SPA and its conservation objectives. 111 The Claimant submits that it has been authoritatively held that FLL has the same status and the same protection as the SPA itself. The authority relied on is the judgment of Ouseley J in Royal Society for the Protection of Birds v SSCLG [2014] Env. L. R. 30. That case concerned the proposed expansion of an airport, located close to a Special Area of Conservation, which included an SPA. At the planning inquiry, the RSPB raised the issue of disturbance to birds, as a result of the control measures (bird scaring), which would be taken to safeguard aircraft using the airport from risk of bird strike. The Inspector found there was little evidence there would be a significant decline in the size, distribution and functioning of the relevant bird species; and that, even if an AA were required, there was no evidence that there would be an adverse effect on the integrity of the SAC and other designated sites as a whole.40. ‘27 There is no authority on the significance of the non-statutory status of the FLL. However, the fact that the FLL was not within a protected site does not mean that the effect which a deterioration in its quality or function could have on a protected site is to be ignored. The indirect effect was still protected. Although the question of its legal status was mooted, I am satisfied, as was the case at the Inquiry, that while no particular legal status attaches to FLL, the fact that land is functionally linked to protected land means that the indirectly adverse effects on a protected site, produced by effects on FLL, are scrutinised in the same legal framework just as are the direct effects of acts carried out on the protected site itself. That is the only sensible and purposive approach where a species or effect is not confined by a line on a map or boundary fence. This is particularly important where the boundaries of designated sites are drawn tightly as may be the UK practice.’41. ‘birds would be affected by disturbance in feeding from the FLL, and that it would sterilise an area of SPA used for feeding and roosting. But this possibility depended on the strength of [the Airport’s] response which was that birds, scared off from the FLL, and from the small amount of SPA which could be affected by bird control measures during airport operational hours, would return to feed and roost on the FLL or the affected part of the SPA at night. The issue was principally feeding.’ 114 Considering the RSPB’s submission that it was for the developer to exclude evidence of significant effects on the basis of objective material, Ouseley J said ‘The Inspector did not conclude that birds would not leave the SPA, or not do so because there was other FLL to which they would go. He did not say that they would feed somewhere else. But this, in my judgment, is to ignore the Inspector’s evaluation of the evidence as to whether birds would return and feed during non-operational hours.’ (paragraph 80). 115 In the present case, although the SPD is referenced in the AA and the IP’s planning statement, these references are, the Claimant says, irrelevant to the issue regarding the categorisation of the proposed habitat enhancement. The SPD’s ‘explicit advice’ on the issue was ignored completely. As a result, the Defendant gave no explanation as to why, in this particular case and by reference to either the location or attributes of this particular proposal, the advice in the SPD was inappropriate and/or inaccurate. Ground 3: discussion 116 The interpretation of the SPD is a proper matter for the Court. Read as a whole, the ordinary meaning of the document is not that for which the Claimant contends. The passages under the heading ‘Appropriate assessment’ are an accurate statement of the law, as reflected in the 2017 Regulations and the cases. They do not map onto the facts of the present case, so as to compel (or even suggest) the conclusion that the replacement FLL is to be treated as compensation, thus triggering the extremely stringent requirements described in the four bullet points under that heading: see paragraph 109 above. The Claimant’s reliance upon the passages under the heading ‘Mitigating significant effects’ founders on the plain meaning of the opening word “Within.” If there is physical loss of part of the SPA, the ameliorative measures are highly likely to be compensatory, within the ambit of article 6(4) and regulation 64; such that an AA cannot be used to categorise them as ‘merely’ mitigatory. But, as explained in paragraph 75 above, this is not the factual position here. The SPD does not purport to treat FLL as if it were an actual part of a European Site. Were it to have done so, it would have misstated the law. The SPD’s reliance on Briels is instructive. Paragraph 1 of AG Sharpston’s opinion tells us that the road-widening project affected an SAC because the project was ‘likely in particular to reduce the area and/or quality of molinia meadows within that area.’ New molinia meadows were to be created ‘elsewhere in the same site.’ The provision of the new meadows could not prevent the loss or degradation of the threatened meadows that were within (and so part of) the SPA. Paragraphs 31 and 32 of the CJEU’s judgment fall to be read in that light: see paragraph 62 above. 117 The RSPB case is not authority for the proposition that FLL is in all respects equivalent in status to land within a European Site and so is to be protected in like manner. I agree with the IP that paragraph 27 of the judgment does not say that indirect effects on such a Site are to be treated as if they were direct effects on the SPA, in the Briels sense. Ouseley J’s reference to indirect effects being scrutinised ‘in the same legal framework’ means that (now) the 2017 Regulations are in play. It does not mean that any loss of FLL must be treated as if it were the loss of part of the SPA. 118 It is possible to conceive a scenario where the development of FLL could have so great an effect on the SPA as to affect the integrity of the Site and make any ameliorative proposals compensatory in nature. Such could be the case where, for example, the carrying on of the activities facilitated by the development would be so persistently noisy or otherwise disruptive as to drive protected bird species permanently away from part of the SPA and so affect the SPA’s integrity. That was, however, not the position in the RSPB case; and it is not the position here. The professional consensus was that creating the appropriate habitat on land at the Lilford Hall Estate would stop any significant harm from arising, as a result of the loss of the FLL at the development site. For all these reasons, the Claimant’s invocation of the SPD is misconceived. The Claimant’s case on Ground 4 119 The Claimant submits that the Defendant was required to assess the in-combination effects of the development alongside other relevant developments. In so doing, the Defendant had to appreciate that, as Fordham J held at paragraph 61 of R (Caffyn) v Shropshire Council [2026] PTSR 104, ‘Environmental protection is about real-world effects and the environmental reality takes effects of plans and projects when viewed together.’ 120 In its skeleton argument and oral submissions, the Claimant concentrated upon the effects of the proposed development with that at Castle Manor Farm. Taken together, these would mean the loss of 135 hectares of foraging and roosting land for Golden Plover and Lapwing. In the October AA, the Defendant gave two reasons why Castle Manor Farm did not fall to be taken into account. The first was that there was no guarantee that permission would be given for that site’s development. This reason was wrong in law. The Claimant is correct in this regard; and I did not hear the Defendant or the IP to contend otherwise. On its own, this error is, however, immaterial. 121 The second reason was that there would be no residual effects capable of adding to any effects from other schemes; or, to quote the words of the AA, ‘No potential for in combination effect, as potential impacts upon FLL will be addressed by the proposed mitigation package from the development.’ The Claimant acknowledges that the OR of November 2025 referred specifically to the Inspector’s report, allowing the appeal in respect of the Castle Manor Farm development, where at paragraph 124, the Inspector had concluded that there would be no residual effects arising from that scheme which would be capable of adding to any in-combination effects from other schemes: see paragraph 36 above. The Claimant, however, in its skeleton argument, draws attention to EN’s letter of 21 November 2024, which states that any proposed replacement habitat should be ‘free from any development disturbance:’ see paragraph 8 above. This leads the Claimant to submit that, where two nearby developments are proposed, each with its own replacement habitat as prospective mitigation, any decision-maker addressing in-combination effects must consider whether either development might impact on the effectiveness of the other’s proposed mitigation. If, for example, the proposed replacement habitat for Development 1 is next door to Proposed Development 2, that replacement habitat would not be free from development disturbance and the in-combination effects might be significant. 122 That, the Claimant says, is precisely the position here. The skeleton argument refers to a plan annexed to the IP’s Shadow Habitats Regulations Assessment of June 2024. The plan shows an area hatched purple along the top and part of the right-hand side of the site boundary for the present proposed development. The hatched area is described as ‘Area of additional acoustic disturbance.’ Part of this area overlaps a part of the replacement FLL for the Castle Manor Farm development. The Claimant contends that the Area of Additional Acoustic Disturbance ‘covers a large part’ of that replacement FLL. This must mean that the present proposed development may lead to an adverse effect on the effectiveness of the Castle Manor Farm replacement habitat and so harm the integrity of the SPA and its conservation objectives for qualifying species. This, the Claimant says, is precisely the kind of ‘real-world’ in-combination effect that the Defendant was obliged to consider. The Defendant unlawfully failed to do so. 123 Furthermore, the Claimant submits that the location of the replacement FLL at the Lilford Hall Estate raises its own concerns by reference to in-combination effects. The unauthorised waste disposal was a ‘plan or project,’ which need to be assessed in combination with the IP’s plan or project. The Claimant relies upon the judgment of Owen J in R (Akaster) vDEFRA [2010] Env. L.R. 33, which held at paragraphs 72 to 77 that the words ‘project’ and ‘plan’ in the Habitats Directive were to be given a very broad definition and meaning, taking into account the broad objectives of the Directive. In addition, the proposed Habitat Bank at Lilford Estate entails interventions, such as extensive planting, which would be incompatible with suitable habitat for the qualifying bird species. The implications of all these in-combination impacts have been ignored, in the Claimant’s submission. Ground 4: discussion 124 The Claimant’s challenge is not that in-combination effects were simply not addressed by the Defendant. Plainly, they were, as both the AA and the OR of November 2025 make plain. There are in substance three strands to the Claimant’s challenge under this Ground. The first is that the Defendant failed to appreciate that small impacts from discrete plans or projects, whilst in themselves insufficient to amount to a material impact on the SPA, can in combination amount to one. Second, the Defendant failed to address the acoustic disturbance issue, whereby the present development would appear to impact adversely upon the replacement FLL for the Castle Manor Farm development. Third, the Defendant failed to address the in-combination effect of the unauthorised waste operations at the Lilford Hall Estate and the proposed Habitat Bank.42. ‘4.2.4 Officer assessment: The proposed development would include mitigation measures sufficient to rule out adverse effects on the integrity of the SPA and Ramsar site, and there would be no residual effects arising from the proposed development that would be capable of adding to any in-combination effects from other schemes.’ 126 Leaving aside the acoustic disturbance issue, the Claimant does not point to any evidence to suggest that, notwithstanding the provision of the FLL for the Castle Manor Farm development and for the present proposed development, each would have some failing or deficiency that is capable of being aggregated, so as to produce a deficiency capable of impacting the SPA to a significant extent. Nor is it suggested that NE has raised any such concern. Accordingly, the position is precisely that articulated in the November OR. 127 I turn to the acoustic disturbance issue. The Defendant and the IP submit that neither this nor the invocation of the waste disposal at the Lilford Hall Estate are encompassed by the Statement of Facts and Grounds (‘SFG’); and no amendment has been sought to include them. There is some force in these submissions. Although paragraphs 81 to 87 of the SFG (as proposed to be amended to add ‘new’ Ground 2) refer expressly to in-combination effects, as between Castle Manor Farm and the IP’s development, they do so in general terms. The SFG criticise the November OR for adopting the Inspector’s reasoning regarding combined effects, contending that the Inspector’s approach was unlawful. The essence of the alleged unlawfulness to consider whether the proposed FLL ‘constitutes effective mitigation, in a silo and then once that calculation is complete, compare the output from the same silos-approach to a neighbouring large warehouse development that also sought to rely upon replacement FLL to reduce or avoid the effects on the SPA. It was a failure to consider the “real-world effects” of the Development here.’ The general complaint articulated in the SFG is addressed in paragraph 126 above. 128 If ‘real-world’ effects are to be considered (and, like Fordham J, I accept they are), it is incumbent on the person invoking them to say what they are likely to be; or at least give a reason which is more than fanciful why (applying the precautionary principle) an examination would be likely to disclose material effects. 129 So far as the acoustic disturbance issue is concerned, the Claimant’s position at the hearing was that, although not specifically pleaded, it is covered by the assertion in paragraph 82 of the SFG that the in-combination effects of the two schemes were ‘an obviously material consideration in assessing ... [t]he effectiveness of the proposed replacement land’ for the Castle Manor Farm development. 130 With some hesitation, I am prepared to accept that, as a matter of procedure, the acoustic disturbance issue is covered by the pleaded Grounds. The fact that it was not specifically raised until the Claimant filed and served its skeleton argument is, however, significant, in addressing whether the issue discloses unlawfulness on the part of the Defendant. It is difficult to see how the issue can be said to be an ‘obviously material consideration,’ in whole or part, if the Claimant and its advisers did not alight upon it until this stage of the proceedings. Furthermore, in assessing this matter, the Court must be wary of becoming a primary fact-finder in a jurisdiction which generally affords primacy to those tasked by Parliament with making decisions that habitually turn on the application of specialised judgment. 131That the acoustic disturbance issue was very far from being an obviously material consideration is underscored by the failure of the Claimant to raise the matter at the Castle Manor Farm Inquiry. The Claimant took a full part in those proceedings, being represented (as it is now) by Mr Stinchcombe KC. There is nothing to indicate that the Claimant or anyone else raised before the Inspector that the IP’s development of the land to the north-west of the Castle Manor Farm site would materially impact on the efficacy of the adjoining Castle Manor Park FLL because there would be ‘additional acoustic disturbance.’ The Claimant’s case in the present proceedings necessarily involves a legal criticism of the Inspector. It is common ground that, as an extant project, the IP’s development fell to be considered by the Inspector in assessing the in-combination effects of the Castle Manor Farm scheme. The Claimant’s stance means it is contending that paragraphs 123 and 124 of the Inspector’s decision letter are wrong in law by reason of the Inspector’s failure to consider the acoustic disturbance issue. The time for challenging the Inspector’s decision has long passed. The presumption of regularity therefore means that this Court will be slow to conclude that the Inspector erred, absent cogent evidence to the contrary. This necessarily impacts upon the ability of the Claimant to make good the acoustic disturbance issue in the context of the present proceedings. 132 Not only is there a dearth of evidence to show there is anything in the Claimant’s case on this issue; what evidence there is points firmly to the matter not being in any sense material. A perusal of paragraphs 111 and 120 of the Inspector’s report reveals that the replacement FLL for Castle Manor Farm is 44 hectares, whereas NE considered that Golden Plover and Lapwing ‘covered a smaller area of 22ha.’ The plan showing the area of additional acoustic disturbance from the IP’s development covers only a part of the western side of the Castle Manor Farm replacement FLL. According to the information on the plan, this part is not land on which Golden Plover or Lapwing are recorded as being present, whereas Lapwing are recorded as being present elsewhere on the replacement FLL. 133 Additionally, the IP draws attention to the conditions attached to its detailed consent for Development Plot 1, which lies next to the replacement FLL for Castle Manor Farm. Condition 5 states that, prior to the commencement of any building in Development Plot 1, details of boundary treatments shall be submitted to and approved in writing by the Defendant. Mr Tucker KC submits that, if considered necessary, any acoustic issue can be addressed by requiring fencing that is designed to minimise noise disturbance outside the Development Plot. This, he says, is part of the ‘real-world’ scenario. I accept this submission, which is a further indication of the immateriality of the issue. My findings in paragraphs 130 to 132 above, are, however, themselves such as to cause me to reject this aspect of the Claimant’s case under Ground 4. 134 The challenge based on an alleged failure to take account of the in-combination effects of the waste disposal at the Lilford Hall Estate founders for similar reasons. Whilst I am just prepared to accept that the issue is covered by paragraph 82b of the SFG, there is no evidence that what has occurred on the Estate has had any deleterious effect on the proposed FLL there. I refer to my findings above on Ground 2. In any event, any waste disposal on the FLL or on adjacent land that, in either case, affects the ability of that land to function as provided in the section 106 agreement can be addressed under the mechanisms provided in that agreement, which require whoever is the owner of the Estate to establish and maintain a high value area of FLL. The assertion that the creation of a Habitat Bank will adversely affect the functioning of the FLL is also misconceived, for the reasons given above in respect of Ground 2. The Claimant’s case on Ground 5 135 The Claimant submits that whether the proposed replacement FLL was mitigation or compensation was a ‘principal important controversial issue’; and that no reasons at all, let alone legally sufficient reasons were given so as to enable the reader to understand why the matter was decided as it was: Porter No. 2. Nor were legally sufficient reasons given for why the Development would not have any adverse effects on the integrity of the SPA. The requirement to give reasons has to be seen in the context of, inter alia, the high standard of investigation required (Wyatt) and the number and nature of the objections to be addressed, including that no species had been recorded within 2.5 km of the proposed FLL, which is traversed by hedgerows and trees; and where it is proposed to have ‘yet more planting.’ Ground 5: discussion 136 To a great extent, Ground 5 overlaps with Ground 1. I refer to what I have found at paragraphs 82 to 88 above. The reason why it was concluded that the IP’s development would not have adverse effects on the integrity of the SPA are evident. Any potential adverse effects caused by the loss of the FLL at the development site would be avoided through the creation of a replacement FLL, secured by the section 106 agreement. I agree with the IP that no more needed to be said. An objective reader of the relevant documentation can be in no doubt about why the decision was reached that the replacement FLL would prevent the SPA being adversely affected. Golden Plover and Lapwing would feed and roost on the replacement FLL, as they had on the FLL at the development site. Decision 137 Grounds 1, 3, 4 and 5 fail for the reasons set out above. Although I grant permission on Ground 2, it fails for the reasons I have given. The application for judicial review is accordingly dismissed. 138 I wish to thank counsel and those instructing them for the high quality of the parties’ respective submissions.