Claimants fail in legal challenge to permission for 185,000m² of warehousing on greenfield land

LM Properties successfully applied to build 185,000m² of Class B8 warehousing on 60.05 hectares of greenfield land near Titchmarsh.

Claimant, Save Titchmarsh and Upper Nene Countryside and Habitats (Staunch), argued this would be inappropriate at the site.

Sir Peter Lane was told the site next door had already seen permission granted on appeal for 200,000m² of Class B8 warehouses and the two developments would see the loss of more than 135 hectares of open land.

Staunch argued five grounds: These were:

• North Northamptonshire failed to assess whether the replacement functionally linked land proposed by the developer was a mitigation or compensation measure.
• The council failed to take into account the mandatory material consideration that the owner of the proposed replacement functionally linked land had been reported to both the Environment Agency and the council for burying rubbish on adjacent land.
• It failed to take account of the Supplementary Planning Document’s statement it is “very difficult to implement mitigation for proposals causing physical loss or fragmentation of habitats” and that new habitats will be compensation”.
• North Northamptonshire failed to undertake a lawful assessment of the effects of the development in combination with other local development.
• The council failed to give lawful reasons why the proposed replacement functionally linked land constituted mitigation (rather than compensation) and why it was satisfied a nearby Special Protection Area  (SPA) would not be damaged.

Sir Peter said this was “quintessentially a case where, if it were necessary to do so, I would find that section 31(2A) [of the Senior Courts Act 1981] applies and refuse to grant relief, were the claimant to have made good this element of its grounds of challenge…I would have no difficulty concluding…that this is plainly a case of mitigation. It is at the very least 'highly likely' that the outcome for the claimant would not have been substantially different”.

He added: “Standing back, it is evident that, as the [council] has submitted, Ground 1 is, at heart, a disagreement with the defendant's decision-making. It is in truth a 'merits' challenge. Ground 1 fails to disclose any public law illegality on the part of the defendant.”

On Ground 2, Sir Peter said there was sufficient evidence before the court to indicate that, for the purposes of these proceedings, burning and burying of waste had occurred at the sites identified by the claimant.

“The issue is whether these activities have any material bearing on the lawfulness of the impugned decision by demonstrating a flaw in the defendant's conclusion that the functionally linked land replacement land at the Lilford Hall Estate will be effective mitigation,” he said, adding he found no flaw.

Sir Peter noted that the developer’s detailed strategy must be agreed with the council before development can begin, so any contamination which rendered the land incapable of providing mitigation “would in practice render the development a dead letter”.

He dismissed the third ground noting: “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 functionally link land at the development site.”

The fourth ground fell as the judge found no “deleterious effect” and the final ground because it largely overlapped with the first, failed, ground.

Mark Smulian