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S288 Challenge Granted Permission on the Papers – People Over Wind, Habitats Directive, Local Plans and Aarhus Convention Claims

Horatio Waller

John Howell QC has granted permission for a parish council to challenge a planning inspector’s decision to grant planning permission for a residential scheme at Broden Stables in Crondall and decided that the Aarhus costs capping provisions apply.

The claim is focussed on two aspects of the Inspector’s decision.

The first concerns the Inspector’s failure to require an appropriate assessment under the Habitats Directive, despite accepting that the scheme had the potential to have adverse effects on bird species within the Thames Basin Special Protection Area (“the SPA”) through recreational disturbance. The Inspector screened out an appropriate assessment on the basis that any potential adverse effects from the scheme could be mitigated by a financial contribution to a nearby Suitable Alternative Natural Greenspace.

Arguing that this approach is legally flawed, the parish council relied upon Case C-323/17 People Over Wind [2018] PTSR 1668, where the Court of Justice decided that: "it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on the site." John Howell QC decided that this ground is at least arguable and, in the absence of full argument, was not prepared to rule out the possibility that an appropriate assessment would have made a material difference.

The second area of challenge on which John Howell QC granted permission to proceed concerns the Inspector’s approach of giving reduced weight to settlement boundary policies – which conflicted with the proposed development - in the adopted and emerging local plans.

In addition, John Howell QC accepted the parish council’s arguments that the Aarhus costs capping provisions apply in this case. The entitlement of the parish council to an Aarhus costs cap turned on two issues.

The first was whether a parish council is a “member of the public” entitled to rely on the access to justice provisions in the Aarhus Convention. The Secretary of State had argued that a parish council cannot be a “member of the public” because it has the characteristics of a “public authority” for the purposes of the Convention. Rejecting this argument, John Howell QC ruled that these categories are not mutually exclusive. A Parish Council can be both a member of the public and a public authority for the purposes of the Aarhus Convention depending upon the context, and it will be a “member of the public” when relying on the access to justice provisions, like in this case.

The second issue was whether the claim fell within one of the categories of claim listed in CPR 45.41(a) as those which can constitute Aarhus Convention Claims. This turned on whether the residential scheme under consideration was an activity which a competent authority had decided may have significant effects on the environment and it therefore fell within Articles 6(1)(b) and 9(2) of the Aarhus Convention and CPR 45.41(a)(i). The parish council successfully argued that it was such an activity, as a matter of law, because the planning inspector had considered whether the scheme required an appropriate assessment, which implied that the scheme may have significant effects on the environment, i.e. the SPA.

The claim will now proceed to a full hearing, which will, amongst other things, turn on the application of Case C-323/17 People Over Wind [2018] PTSR 1668 to UK planning law.

Horatio Waller acts for the Claimant.