Mr Justice Dove has handed down judgment in the case of Gladman v SSHCLG & Medway Council [2019] EWHC 2001 (Admin).  The case concerned an appeal seeking planning permission for a development of 225 houses near Cliffe Woods in Kent.  The appeal was decided by the Secretary of State after the CJEU decision in People Over Wind and whilst the October 2018 ‘Technical consultation on updates to national planning policy and guidance’ was underway.  The technical consultation dealt with, amongst other matters, the effect of People Over Wind on the provisions of the National Planning Policy Framework (NPPF) and the calculation of local housing need using the 2016 household projection figures. 

In the High Court, the Claimant argued that the CJEU decision in People Over Wind was wrong and that the domestic decisions in Hart DC [2008] EWHC 1204 (Admin) and Smyth [2015] EWCA Civ 174 should have been followed instead.  Mr Justice Dove concluded that he was “entirely satisfied that the CJEU’s decision in People Over Wind was correct” [66]. 

Mr Justice Dove noted that the CJEU’s reasoning in relation to the need for full and precise analysis removing all reasonable scientific doubt reflected a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive [63].  The Judge endorsed the CJEU analysis that taking account of mitigation measures at the screening stage would compromise the practical effect of the Habitats Directive by circumventing the full and precise analysis required by appropriate assessment, and that the incorporation of mitigation measures at the screening stage sought to answer the question posed by appropriate assessment but without any appropriate assessment being in fact undertaken.  Dove J considered that there were cases where proposed mitigation measures needed to be the subject of full and precise analysis so as to see whether or not, in truth, they removed all scientific doubt as to the effects of the proposed works, and that such an analysis may not be possible without undertaking the full appropriate assessment process [64]. 

The Judge also endorsed the CJEU’s reasoning that taking mitigation measures into account at the screening stage had the effect of depriving the public of a right to participate in the decision-making process, as this procedural safeguard did not exist if appropriate assessment was not undertaken [65]. 

The Judge noted that the decision in Grace v An Bord Pleanala, which post-dates the decision in People Over Wind, reinforced the consistent approach of the CJEU in respect of Article 6(3).  Dove J also declined to make a reference to the CJEU, noting that the “CJEU’s construction of Article 6(3) of the Habitats Directive is clear and reflects the language and purpose of that provision” [66].

The Claimant also argued that in determining the appeal the Secretary of State should have applied the policy proposals contained in the technical consultation, rather than extant policy and guidance, and that it was unfair for the parties not to have been consulted in relation to the appeal on the proposals in the technical consultation.

Mr Justice Dove observed that “it would be premature, and potentially undermine the interests of those participating in the consultation exercise in respect of policy alteration, for the decision-taker to effectively apply the amended policy prior to the process of considering that alteration being completed” [39].  He went on to say that there was “much to commend in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and awaits the outcome of a consultation process on the review of a policy before applying any new policy which might emerge”, so that there was no “premature second guessing of its outcome through the application of a policy which was being consulted upon” [43]. 

Dove J concluded that the Secretary of State correctly applied extant NPPF policy and guidance, and was justified in not departing from it.  He also concluded that the Claimant had in fact been consulted on the substantive issues and that there was no unfairness in not consulting the parties on the technical consultation itself.  The Judge concluded that the Claimant “was not in any way prejudiced and had every opportunity to present their contentions in respect of these issues” [46]. 

Richard Honey acted for the successful defendant, instructed by the Government Legal Department.