Appropriate actions

Annabel Graham Paul looks at a recent judgment that clarifies the approach to carrying out Appropriate Assessments under the Habitats Regulations when considering planning permission.

In R (on the application of Dr Rosalind Bradbury) v. Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) & anr. [2024] EWHC 1242 (Admin), Mr Justice Jay considered the correct procedural approach to carrying out Appropriate Assessments under the Habitats Regulations when granting planning permission, in particular where a Planning Committee takes place before Appropriate Assessments are finalised and signed off.

The case concerned two agricultural developments for a steel portal frame and yard cover at Dan y Bwlch Farm in the Brecon Beacons National Park. The farm is within the River Wye Special Area of Conservation and it was not in issue that the Wye suffers from phosphate pollution and the developments required Appropriate Assessment under Regulation 63 of the Conservation of Habitats and Species Regulations 2017.

Appropriate Assessments for both developments were prepared by the National Park’s ecologist. They were an update from previous Appropriate Assessments which had been conducted in respect of the same developments (planning permission having been quashed by consent on two previous occasions for different reasons), in light of Natural Resources Wales’ July 2022 revised Advice to Local Planning Authorities for planning applications affecting phosphorus-sensitive river SACs. The Park’s ecologist completed the third version of the Appropriate Assessments on 3 March 2023.

The Appropriate Assessments concluded no likely significant effects on the SAC, with mitigation. They were checked on the same day by the Park’s Principal Planning Officer and sent to NRW for comment (in accordance with the mandatory requirement to consult the nature conservation body under Regulation 63(3)). Members of the public were not consulted on the Appropriate Assessments, which was perfectly lawful, as public consultation is discretionary (Regulation 63(4)).

In the run up to the Planning Committee meeting, on 17 March 2023, Fish Legal, a not-for-profit organisation, wrote to the National Park voicing concerns about the previous Appropriate Assessments dated May 2022 which had been published in the context of the quashed planning permissions. They were concerned that the developments would introduce higher numbers of livestock leading to further stripping of the surface area towards the watercourses and urged that NRW were re-consulted.

On 20 March 2023, the National Park’s Planning Officer emailed the Fish Legal letter and a cross-compliance report on the farm to NRW and asked them for their comments.

Planning Committee was held on 21 March 2023; Members having carried out a site visit on the previous day. Members could read from the officer’s reports that there had been Appropriate Assessments in relation to the previous applications but they were not provided with copies of those. Neither were they provided with copies of the March 2023 versions of the Appropriate Assessments which were still in draft. They were told that the Appropriate Assessments had been updated and sent to NRW for review and, at the time of drafting the agenda, the response was awaited.

During the course of the Committee meeting, NRW emailed planning officers stating that their understanding was that there would be no increase in livestock numbers and that, on that basis, they were content with the Appropriate Assessments. The email was orally communicated to Members. It was thus obvious to Members that, as regards the substance of the matter, the Appropriate Assessments as ‘signed off’ would be stating that there would be no adverse effects to the integrity of the River Wye SAC, provided that the recommended planning conditions were in place. Members went on unanimously to resolve to grant planning permission for both developments.

The Head of Planning authorised the Appropriate Assessments on 21 March, after the Planning Committee had concluded. She emailed the relevant department requesting that the Appropriate Assessments be uploaded to the National Park’s website, which happened on 23 March, along with the planning decision notices (which had been issued on 22 March).

The Claimant claimed that officers had failed to publish the Appropriate Assessments online within three clear days before the Committee Meeting held on 21 March 2023 (contrary to s. 100D of the Local Government Act 1972 as ‘background papers’), and / or the decisions were procedurally unfair in that the failure to publish the Appropriate Assessments deprived interested parties of the opportunity to comment in circumstances where the nature and scope of the Appropriate Assessments were highly controversial, and officers deprived members of the Committee of highly material evidence upon which their decision to grant planning permission necessarily depended contrary to Regulation 63(5) of the 2017 Regulations. Regulation 63(5) provides that the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site.

Jay J found that there had been a technical breach of Regulation 63(5) because, whilst it is not a requirement to consult members of the public on the content of Appropriate Assessments, the Planning Committee needed to be able to form an “evaluative judgement” as to whether their conclusions were correct. He relied on the Court of Appeal authority of R (Wyatt) v. Fareham BC [2022] EWCA Civ 983; [2023] PTSR 1952 for the principle that, whilst Appropriate Assessments are not matters of planning judgement, they do involve elements of evaluative judgement. Notably, Jay J had been the High Court judge in that case. He commented, obiter, that a Planning Committee could lawfully disagree with the conclusions of the assessment. Even though the National Park’s Planning Committee knew that there were draft Appropriate Assessments and what their ultimate conclusion would be, they were only referred to in general terms and the Committee Members were not appraised of the details. He also found that it was axiomatic that they should have been background papers to the Committee Report and so there was a breach of s. 100D of the 1972 Act. He said that the drafts should have been published online in advance of the meeting or, alternatively, they should have been ignored altogether and the Committee Meeting deferred.

Jay J declined, however, to quash the planning decisions because a modicum of reality needed to enter this discourse. Two previous Appropriate Assessments had entered the public domain and the issues were straightforward and well-known. The Planning Committee’s decision would obviously have been the same and the breach was entirely technical. The representations from Fish Legal and others added nothing and, even on the old Simplex test, he found that the outcome would inevitably have been the same. Even if the Claimant had the opportunity to make more representations, she had not put forward any new point she would have made.

There was also a ground of challenge in relation to the treatment of an old, obstructed footpath in the decision-making process which was rejected as entirely unconvincing.

The judgment raises important practical points for LPAs who routinely press ahead with a Planning Committee meeting before an Appropriate Assessment has been finalised, as it is understood can occur when either a consultation response is taking longer than expected to be received and / or late representations are received from the public which require the natural conservation body’s input. Jay J did not, however, rule out a Committee Meeting taking place in these circumstances, commenting that it might be possible to provide a Committee with a draft Appropriate Assessment which had not been formally signed off for them to consider as part of their decision-making process and subsequently sign it off at officer level before issuing a decision notice, having received appropriate delegation from the Committee to do so, so long as the signed-off version was not materially different. What is important, however, is that the Committee (and, with them, the public) are able to form a judgement on the substance of the Appropriate Assessment itself. It is not a freestanding ecological exercise upon which Committee members can have no input.

Annabel Graham Paul is a barrister at Francis Taylor Building who acted for the National Park Authority instructed by Charles Felgate of Geldards.