An application for judicial review against an approval for reserved matters to Hoplands Farm, Kent, has been granted, but the case has been dismissed.
In a claim for judicial review filed in March 2019, the Claimant, a local resident, challenged the decision of the Defendant, the local planning authority, to grant approval for reserved matters relating to a development at the Hoplands Farm site. Planning permission was granted in July 2017 for the development of up to 250 houses, a neighbourhood centre including medical services, retail outlets and a nursery, a commercial estate, a community building, amenity space and parking, together with 15 ha of ecological parkland. In February 2019 the Council granted approval for reserved matters relating to access, appearance, landscaping, layout and scale in respect of part of the Hoplands Site, to create 176 dwellings and for parkland.
The southern boundary of the site is near to the Stodmarsh National Nature Reserve, a European designated site which includes the Stodmarsh Special Protection Area, Stodmarsh Special Area of Conservation, Stodmarsh Site of Special Scientific Interest and the Stodmarsh Ramsar wetland site. The site also falls within the 7.2 km zone for the Thanet Coast and Sandwich Bay SPA and Ramsar wetland site.
The Claimant submitted that the Council acted in breach of Directive 92/43/EEC, on the conservation of natural habitats and of wild fauna and flora, and the Habitats Regulations SI 2017/1012, by failing to conduct a Habitats Regulation Assessment (HRA) before granting outline planning permission. When the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead it conducted a HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage. The Council argued that it had taken into account mitigation measures at the initial screening stage and concluded that the outline consent was valid unless and until quashed by a Court.
The Judge concluded that the decision would have been the same even if a lawful appropriate assessment had been conducted at outline permission stage, that there would be no adverse impact on the integrity of the designated sites. Although the Council was not entitled to have regard to mitigation measures at the screening stage, it was entitled to have regard to them at the appropriate assessment stage.
The Claimant also submitted that the Council's HRA was deficient because its assessment in respect of recreational pressure, lighting, loss of functionally-linked habitat and invasive species did not meet the standards required, and it failed to consider the in-combination effects from the proposed housing development.
The Judge concluded that the HRA conducted by the Council was appropriate for the task in hand, as they were able to draw upon previous detailed research and reports submitted by interested parties. Its findings were precise and definite and there were no significant gaps in knowledge. The Council was entitled to rely upon Natural England's endorsement of its HRA who was well placed to judge the risks from the proposed development. The Judge concluded that the Claimant's challenge did not come close to meeting the high threshold of irrationality, it was primarily a disagreement with the Council's exercise of its planning judgement.
"In my view, the claim was arguable, as the Council conceded, because of a change in the courts' understanding of the law, it had applied the wrong legal test under the Habitats Directive and Habitats Regulation 2017".
Permission to apply for judicial review was granted, but the claim was dismissed.
