Friday, 11 June 2010

Developing overgrown land

The Court of Appeal decision in R (Morge) v. Hants CC [2010] EWCA Civ 608 in which judgment was given on 10 June is an interesting example of the problems facing developers of derelict sites which have become overgrown and have consequently become the habitat of various fauna and flora including protected species. It also reinforces the rule that elected members are not automatically bound to follow expert advice, but must make their own decision (subject to its being reasonable in the Wednesbury sense).

I don’t propose to discuss the detailed facts of the case but as Ward LJ put it, this was a case “about bats and badgers, Beeching and busways”. Hants CC (acting through ‘Transport for South Hampshire’) had proposed a busway along an old railway line, closed some 40 years ago by Dr Beeching. In the meantime, the route of the line has become the habitat for, among other things, bats and badgers.

The appellant sought to have the planning permission for the busway scheme quashed due to various alleged breaches of the European Habitats Directive and the regulations giving effect to the directive in this country, specifically relating to the deliberate disturbance of protected species. The judge at first instance decided that the regulations had not been breached, and after a careful analysis of the regulations, the Court of Appeal upheld that decision. [For those interested in the interpretation of ‘disturbance’ in this context, there is a useful discussion of that issue in the judgment.]

Another ground of challenge had been that the Planning Committee in deciding to grant planning permission failed to have due regard to the Directive as required by the Regulations in the sense that it needed to consider the protection afforded to protected species and to consider whether the derogation requirements (allowing a scheme to go ahead notwithstanding adverse effects) could be met. The Court of Appeal was satisfied that the committee had discharged this duty, including paying proper regard to an updated bat report.

Counsel for the appellant had submitted that the members of the Planning Committee could not rationally have concluded that the environmental effects on the bats, the badgers and local amenity were not significant when the material in the various reports to which the Committee had access expressly stated that the impacts would be significant. Counsel for the appellant questioned whether in circumstances where expert consultants for the Planning Authority have reported to it that there will be certain significant effects, it is open to the Planning Authority to reach the contrary conclusion. He submitted that the LPA must be guided by its experts and that it is irrational to disagree with them.

The Court disagreed. This proposition went too far. A conclusion which is reached against the weight of evidence is not necessarily unlawful. This argument was based on the assumption that reaching a contrary conclusion constituted an error of law, because as a matter of law the Committee must willy-nilly accept the experts' opinions, and that no other option is available to it. That must be wrong because it would emasculate the members' duty themselves to decide the question. It is their decision to make, not the experts’. Whilst of course they must pay due regard to the evidence before them, they are not bound to follow it. The weight to give the reports is a matter for the members to assess. The members must exercise their independent judgment about the significance of the effects looking at the information overall. This was quintessentially a matter for the Committee to exercise its planning judgment and form its independent opinion. In those circumstances it could not be said that the decision was irrational.

Cases of this sort, involving the development of sites that have become overgrown and have therefore become the habitat of various flora and fauna, possibly including some protected species, can sometimes result in a refusal of planning permission where development might reasonably have been allowed in other circumstances. The practical lesson for landowners and developers is that they should keep potential development sites clear of plant growth, so as to prevent the site gradually becoming a wildlife habitat. If the site is derelict, make sure it stays that way!


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