Case law >> Mitigation obviates need for habitats assessment

Jen Hawkins, from LexisPSL, describes a recent high court ruling that mitigation measures agreed with Natural England obviated the need for a habitats assessment

The high court has dismissed a challenge to the granting of planning permission for a residential development in Exminster near a special protected area (SPA) and special area of conservation (SAC).

In Smyth v Secretary of state for communities and local government & others [2013] EWHC 3844, the claimant argued that the inspector was not lawfully able to conclude that there was no real possibility the development would have any appreciable adverse effect on the integrity on the nearby SPA and SAC.

In dismissing the claim, the court was satisfied the local planning authority had already carried out an appropriate assessment and had taken the view there would be no likely significant effects as long as the mitigation measures agreed with Natural England were adopted.

As the “competent authority”, the inspector had discretion to determine whether the proposed development complied with the Conservation of Habitats and Species Regulations 2010. It was a matter for the inspector’s judgment as to the appropriate weight to give to each party, and the inspector was entitled to give considerable weight to advice from Natural England, said the court.

The court’s attitude to mitigation as a means of avoiding appropriate assessment has varied over the past few months. The decision in Smyth takes a similar approach to the judgment in Feeney v Secretary of state for transport [2013] but contrasts with that in Champion v North Norfolk District Council [2013].