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Residential Development and Wildlife Habitats – Court of Appeal Guidance

In a ruling that will be viewed with dismay by habitat protection campaigners, the Court of Appeal has upheld planning permission for a residential development near to a coastal Special Protection Area (SPA) which is home to an array of protected flora and fauna, including endangered brent geese.

The case concerned planning consent granted for the demolition of disused buildings on a former commercial site and their replacement by eight four- or five-bedroom homes. The site lay about 5.5 kilometres from the SPA, which was highly sensitive to pollution in the form of nitrogen contained in waste water.

In assessing the impact of the development under the Conservation of Habitats and Species Regulations 2017, the local authority concluded that mitigation measures – including an on-site wetland area designed to remove nitrates from surface water and roof water drainage – meant that the development would have no adverse effect on the integrity of the SPA. The permission was challenged by the chairman of a local campaign group but his arguments failed to persuade a judge.

Rejecting his appeal against that outcome, the Court noted that the judge had criticised elements of the methodology used in performing the assessment. He had brought an appropriately intense standard of scrutiny to the case and, overall, was entitled to find that the council had, in the exercise of its evaluative judgment, reached a reasonable and lawful conclusion.

The council had consulted Natural England twice and it would not be right for the Court to intervene in the case simply because there was a divergence of expert opinion as to the impact of the development on the SPA. Such divergences were commonplace and, although the council was required to take a precautionary approach to the protection of wildlife habitats, it was not compelled to default to the most conservative or cautious view propounded. Other grounds of challenge to the planning permission were also dismissed.

24 July 2022
Last Updated
18 August 2022