| PLANNING – Planning permission – Validity – Making best use of land – Conserving biodiversity – Site of proposed development habitat of endangered invertebrates – Whether grant of planning permission flawed – Local Government Planning and Land Act 1980, s 136 – Natural Environment and Rural Communities Act 2000, s 40
Regina (Buglife – The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corpn; WLR (D) 59
QBD: Mitting J.: 22 February 2008
In considering the tension between the purposes of s136 of the Local Government Planning and Land Act 1980 (bringing land into effective use) and s40 of the Natural Environment and Rural Communities Act 2000 (conserving biodiversity) a benevolent construction should be given to planning decisions and, where a claimant contended that a decision was procedurally flawed, it was right to look behind the words used and see what had in substance been decided..
Mitting J so held when dismissing a claim by Buglife – The Invertebrate Conservation Trust for judicial review of a planning decision made the defendant planning authority, Thurrock Thames Gateway Development Corpn, on 12 February 2007 to allow development of a Royal Mail distribution centre on land at Thurrock, Essex which was the habitat of several endangered species of invertebrates. In response to the proposed developers’ initial planning application, Natural England, a statutory consultee, had raised objections. Following discussions a reduction had been made of the area proposed to be developed and steps had been included to mitigate the ecological consequences, and, in view of an agreement with and an undertaking by the proposed developer, Natural England had withdrawn the objections.
MITTING J said that a benevolent construction should be given to planning decisions and, where a claimant contended that a decision was procedurally flawed, it was right to look behind the words used and see what had in substance been decided. On the facts the defendant’s professional officers had submitted a lengthy and careful report to the committee, noting the site’s importance for ecological purposes, and mentioning mitigation measures, including phasing, which would allow time to establish refuges and habitats for displaced creatures. The planning permission had been granted subject to detailed conditions in relation to those matters. The harm had been identified as temporary, fairly described as short-term and not significant. In those circumstances it had not been necessary for the defendant to proceed step by step in accordance with Planning Policy Statement 9: Biodiversity and Geological Conservation (August 2005). In relation to the tension between the purposes of s136 of the Local Government Planning and Land Act 1980 (bringing land into effective use) and s40 of the Natural Environment and Rural Communities Act 2000 (conserving biodiversity) it had been properly concluded that the ecological consequences had not outweighed the benefits of development. A thorough environmental impact assessment had been made and, as the precise impact could not be finally assessed until the development had been undertaken, the agreement with the developers and the conditions imposed in the planning permission did not amount to putting the issues off for another day but were an enforceable and a sufficient means of protecting the position.
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