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HABITATS AND FEES
SCOTT STEMP – NO5 CHAMBERS
This is a summary note of a talk delivered 20th June 2018
PEOPLE OVER WIND
The decision of the CJEU in People Over Wind and Sweetman v Coillte Teoranta (C-323/17) has caused great consternation over the correct approach to be adopted in considering screening and appropriate assessments under the Habitats Directive 92/43/EEC (and also thereby the Birds Directive), both (currently) given effect by the Habitats Regulations 2017.
Until now (and certainly since R (on the application of Hart District Council) v. SoS for C&LG  EWHC 1204 (Admin)) proposed mitigation measures can be taken into account at a ‘screening’ stage – typically seen in established programmes of provision of (or contributions towards) Suitable Alternative Natural Greenspace (SANG) and accompanying Strategic Access Management and Monitoring agreements (SAMMs), rather than having each development undergo a formal Appropriate Assessment process.
However if you thought newts, bats and ground-nesting birds were disruptive, they’ve nothing on what a population of freshwater pearl mussels in the River Nore can do.
The People Over Wind case concerned potential harm to that population and their habitat arising from the laying of a cable, proposed to accommodate connection of a wind farm to the National Grid. It seems that such protective measures as there were, consisted of a proposed construction methodology.The ruling of the CJEU was that measures for the avoidance or reduction of significant effects should not be taken into account at a screening stage. This is at odds with the stance adopted domestically since Hart (above) and potentially creates a number of issues for developers and planning authorities, not least of which the potential for additional delay and expense in the planning process.Some of the other issues it creates – what is a measure for the avoidance or mitigation of a likely significant effect? Since (per People Over Wind) these ought be disregarded for the purposes of screening, what about where the ‘mitigating measure’ is actually a design feature? For example, the height or arc of a bridge over an expanse of water hosting a protected species of bird – the height of the bridge may be a design feature but also serve to alleviate any impact on species.
How about the provision of open space associated with residential development? If you’re providing a discrete parcel of land for mitigating likely impacts on habitats and/or species, this may be relatively easily ‘disregarded’ for the purposes of screening, but what about open space set within and around residential development? A design and layout point for landscaping, recreation, amenity but also (likely) biodiversity too – is this to be disregarded for considering impacts on habitats and species? If so, how? And then immediately re-introduced for consideration in an Appropriate Assessment?
There are a number of potential ways in which People Over Wind might affect development proposals. Firstly, there is the possibility of a challenge being made to its applicability – there is potential for arguing that it can be distinguished from many instances often encountered by developers, given the facts in the case of People Over Wind (a seeming lack of mitigating measures and an almost unique population of protected species) as against the facts often at hand domestically (a well established and known degree and nature of impact from e.g. residential development with an advanced and understood ‘ready reckoning’ form of mitigation).
Secondly, developers and planning authorities may adopt a pragmatic approach to interpreting and applying People Over Wind, particularly with the above-identified potential issues in separating design features from mitigation measures. In some instances, pragmatic views might be taken by authorities as to whether a likely significant effect might arise given the inherent design features of a development; against which in some instances developers may have to accept undertaking an Appropriate Assessment in circumstances where previously they may have simply been able to utilise a SANGs and SAMMs scheme.
Thirdly there is always the option to put your trust in HM Government and David Davis, in that Brexit approaches and, despite warm words of continued regulatory convergence/compliance, it seems an area ripe for regulatory divergence from standards or interpretations of the Directives as between the CJEU and the UK.
PROVECTUS v. DERBYSHIRE
On 8th June 2018 the High Court ruled in the matter of Provectus Remediation Limited v. Derbyshire County Council on the interpretation of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (as amended) (‘the Fees Regulations’) – specifically Regulation 9A of the Fees Regulations.
That is the Regulation which enables the return of an application fee where a planning application has not been determined within 26 weeks. Where an authority fails to determine an application within 26 weeks, the application fee falls to be refunded. The issue here is what happens to the application fee where the authority seek an extension, the applicant agrees the extension, but the local authority still fail to determine the application within the agreed extension?
In Provectus the applicant sought planning permission in relation to mineral works and paid an application fee just short of £45,000.00. The matter carried on for some time, culminating in the authority seeking further information from the applicant and, latterly, an agreed extension of time beyond the 26 week limit for determining the application. Provectus agreed to the extension.
Further information was again sought by the authority; many exchanges followed between the applicant and the authority, in the course of which the agreed extension expired. Matters finally came to a head when Provectus appealed the non-determination of their application to the Inspectorate. Having done so, they sought the return of their application fee on the basis that the time for determining the application had expired and the matter had been appealed for non-determination. The authority declined to return the fee on the basis that the wording of the Fees Regulations did not require a return of the fee in circumstances where an extension of time had been agreed.
Provectus sought a declaration from the High Court on the interpretation of the Fees Regulations. In (very) short, the arguments for each side were:
For Provectus, that the Fees Regulations should be interpreted in such a way as that within an agreed extension the application fee did not fall to be refunded but that if the authority failed to meet the extended deadline then the fee would fall to be returned in the same manner as a failure to meet the ‘ordinary’ 26 week deadline;
For the authority, that the Fees Regulations should be interpreted literally and (as a result of this) as soon as any extension of time was agreed, an applicant permanently lost the ability to reclaim the application fee.
The High Court ruled in favour of a literal interpretation of the Fees Regulations. As matters stand therefore, by agreeing any extension of time to determine an application, an applicant permanently loses their ability to reclaim the application fee.
This will have consequences in terms of how willing applicants are to agree extensions of time with authorities. On one hand is the desire to engage and co-operate with planning authorities – on the other, the potential prejudice to an applicant’s position as regards return of the application fee if an authority is going to drag the decision-taking process out. As was pointed out to the High Court, the interpretation sought by the authority (and held by the Court) effectively penalises applicants who co-operate with an authority on extensions of time and benefits those who refuse to agree extensions; it disincentivises what is presumably desirable behaviour (engaging and co-operating with authorities) and rewards the holding of authorities strictly to the 26 week limit without extension.
The matter may yet be taken to the Court of Appeal; in addition, the case did not concern whether a ‘conditional’ assent to an extension can be given. That is to say, what happens if an applicant agrees expressly to an extension but subject to condition that the application fee will be returned should a decision not be forthcoming within the extension? The interaction between a ‘private’ inter-parties agreement such as that and the terms of a Statutory Instrument (in the form of the Fees Regulations) may yet be a development in this area.
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