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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Embleton Parish Council & Anor, R (on the application of) v Gaston [2013] EWHC 3631 (Admin) (06 December 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/3631.html Cite as: [2013] EWHC 3631 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		The Court House Oxford Row Leeds LS1 3BG
		06th December 2013

Judge Behrens :

1. Abbreviations

1. In this judgment I shall adopt the following abbreviations:

AONB	Area of Outstanding Natural Beauty
CPRE	Campaign for the Protection of Rural England
EIA	Environmental Impact Assessment
EMS	European Marine Site
Mr Ainsley	David Ainsley (the Second Claimant)
Mr Gaston	Ivor Gaston (the Interested Party)
LPA	Local Planning Authority
NPPF	National Planning Policy Framework
PPS	Planning Policy Statement
SAC	Special Area of Conservation
SNCI	Site of Nature Conservation Importance
SPA	Special Protection Area
SSSI	Site of Special Scientific Interest
The Committee	The North Area Planning Committee
The Council	Northumberland County Council
The Parish Council	Embleton Parish Council
The 1990 Act	Town and Country Planning Act 1990
The 1999 Regulations	Town and Country (Environmental Impact Assessment) (England and Wales) Regulations) 1999
The 2011 Regulations	Town and Country (Environmental Impact Assessment) Regulations 2011

2. Introduction

2. In these judicial review proceedings Mr Ainsley and the Parish Council seek an order quashing the grant of a planning permission made on 19^th April 2012.
3. The planning permission was granted by the Council to Mr Gaston in respect of a steel framed livestock building, a temporary caravan and associated development at Dunstan Steads Farm, near Embleton, Alnwick, Northumberland NE66 3DT.
4. The planning permission is challenged on 7 grounds:

1. The Council failed to take into account material considerations namely its agricultural consultant's viability figures and failed to give an opportunity for comment on those figures. It also failed to consider or address the figures produced by Ms Kathryn Vagneur;

2. The committee report was inaccurate and significantly misleading in saying that properties at the existing Dunstan Steads cottages were not suitable;

3. The Council failed to have regard to the National Planning Policy Framework policy on 'dark skies' and departed from the AONB Partnership's recommended condition on light pollution without appreciating or justifying the departure as it only imposed a condition restricting external lighting;

4. The Council erred in law in adopting an EIA screening opinion without considering the effect on the historic environment and it failed to 'clearly and precisely set out the full reasons' for its decision;

5. The application should have been advertised as affecting the setting of a listed building and the character and appearance of a conservation area, under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990;

6. In breach of a legitimate expectation created by paragraph 7.28 of the Council's Statement of Community Involvement, the Council failed to notify objectors to the planning application, including the National Trust, of the date of the committee meeting and thereby prejudiced their ability to appear at the meeting or make written representations on the committee report and so the support they could give to the Claimants;

7. The Council erred in considering whether appropriate assessment was required under the Conservation of Habitats and Species Regulations 2010 as (a) it failed to have regard to the Special Protection Area, (b) failed to appreciate that Natural England's advice on the current application had overlooked the existence of European sites in the vicinity and (c) failed to have regard to the fact that when consulted on the previous planning application Natural England considered that if certain conditions were imposed appropriate assessment was not required and the Council failed to impose those conditions.

5. All of the grounds are opposed by the Council. It will, of course, be necessary to examine the grounds and the Council's response in detail later in this judgment.
6. However in paragraph 18 of his skeleton argument and in his oral submissions Mr White QC made a number of general points. He drew attention to "the incredible degree of diligence" shown by Mr Armstrong, the experienced planning officer involved in the application. He pointed out that this was a relatively small scale development which was the subject of considerable objection resulting in a vast amount of material before the Committee who considered it with considerable care. Both Mr Ainsley and the Parish Council were fully engaged in the process. They made written objections and spoke to members when the application was considered. Mr Ainsley even lobbied other parties such as English Heritage. None of the statutory consultees, such as Natural England, English Heritage, the AONB partnership, the Environment Agency and Northumberland Water maintained any objection to the grant of planning permission. The development has taken place.
7. A judicial review pre-action protocol letter was sent on 30^th May 2012 on behalf of Mr Ainsley, CPRE (Northumberland Branch) and the National Trust, seeking a response within 14 days. The Council responded on 19^th June 2012.
8. The application for judicial review was filed on 18^th July 2012. Summary grounds of resistance were filed on 13^th August 2012 by the Council and 15^th August 2012 by Mr Gaston. Permission to apply for judicial review was granted on all grounds by Clive Lewis QC on 15^th March 2013. On 6 August 2013 the application was transferred to the Administrative Court in Leeds and was heard on 30^th and 31^st October 2013. It is, to my mind somewhat unfortunate that a planning case should have taken 15½ months to be heard. As Mr Gaston points out in his helpful submission to the Court the livestock building was erected in January/February 2013. It remains unfinished because of the grant of permission in these proceedings in March 2013. In so far as this application fails he will complete the development in accordance with the permission. It is also worth noting that the permission for the caravan was only for a period of 3 years and will have to be reconsidered in 2016 in any event.
9. Before dealing with the issues in the case it is right that I should acknowledge with thanks the very considerable assistance I have had from Counsel in this application. Both Counsel produced very detailed and helpful skeleton arguments and the oral arguments were both clear and concise. I am most grateful.

3. Factual Background

10. There is little dispute between the parties as to the factual background. It is contained in paragraphs 5 to 17 of Mr Harwood QC's skeleton argument and in the chronologies attached to Counsels' respective skeleton arguments. Much of this section of the judgment is taken from those documents. Some of the matters referred to in this section will be considered in more detail when considering the detailed grounds.

The site

11. Dunstan Steads Farm, Embleton, Alnwick consists of an agricultural holding of 173 hectares which has been operated as an arable farm. The farm buildings and associated cottages were sold off by the farm's previous owners. The application site lies within the Northumberland Coast AONB, the Northumberland Heritage Coast and is around 575 metres east of the southern edge of Embleton village and the Embleton conservation area.
12. The Embleton Burn is 45 metres from the site and leads directly to protected coastal sites including an EMS, the North Northumberland Coast Ramsar SPA / SAC, the Northumberland Shore SSSI and the Embleton and Beadnell Coast SNCI and Habitats of Principal Importance. Dunstanburgh Castle, a grade I listed building and scheduled ancient monument is located 1.6 km south-east of the site.

The grain store and the farmhouse application

13. Mr Gaston erected a grain storage building adjacent to the site in 2009 under permitted development rights. In May 2010 Mr Gaston applied for planning permission for a farmhouse on the site. On 15 June 2010 the Council received a screening opinion to the effect that no EIA was required for the development. On 13 July 2010 the application was withdrawn following written comments from Mr Armstrong and a meeting between Mr Armstrong and Mr Gaston at which Mr Armstrong said that the Council could not support it.

The first application for a livestock building

14. On 21 July 2010 Mr Gaston submitted an application for a livestock building, hardstanding and a 10,000 litre effluent tank. As can be seen from Mr White QC's chronology between October 2010 and 9 September 2011 a number of steps were taken in relation to the application. On 5 November 2010 the Council received a Screening Opinion to the effect that no EIA was required for the development. On 17 November 2010 Natural England provided a consultation response stating that it had no objection to the proposal and that it would not have a significant effect on the SSSI, SNCI or SPA. On 11 February 2011 Mr Armstrong wrote to Mr Gaston summarising the objections to the application and indicating that the officers were unable to support it. After further correspondence and a meeting between Mr Gaston and Mr Armstrong on site, on 9 September 2011 Mr Armstrong wrote a formal letter to Mr Gaston advising him to withdraw the application and to submit a new application which dealt in addition with the new residential accommodation that was being sought. Mr Gaston accepted the advice and withdrew the application

The current application

15. The application was submitted on 26 October 2011. It was for

"Steel-framed livestock building 30.48m by 13.41m Eaves height 4.28m, together with a temporary dwelling (caravan) with associated work including new access to/from highway, drive, yard and parking areas landscaping and boundary fence. Provision of Foul Sewage treatment tank^[1] and drainage"

16. The application was supported by an Agricultural Planning Appraisal by Julie Liddle. In the assessment she pointed out that the Gaston family have farmed at Ravenlaw, Duns since 1999 some 39 miles away. The intention of Mr Gaston was to move part of his calf rearing business to Dunstan Steads. Calfs are brought to the holding in batches at 7 days old, A proportion are taken through to bull beef at 18 months. There is a constant turnover of very young calves with approximately 200 reared at Dunstan each year. She concluded that a dwelling at Dunstan Steads was essential to enable the proper functioning of the farming business.
17. Objections were made by Embleton Parish Council, Mr Ainsley, National Trust, CPRE and over 80 others. The issues raised by consultees included visual impact, impact on the character and appearance of the AONB, impact upon the setting of Dunstanburgh Castle, noise, odour and impact on residential amenity, lack of need including lack of need for residential development in this location, a concern that this scheme is simply intended to pave the way for a permanent dwelling, and the effect of drainage and effluent upon watercourses and designated sites.
18. A Landscape and Visual Impact Assessment was prepared on behalf of Mr Gaston in February 2012. The application was amended to move the proposed livestock building closer to the other building and to put the caravan by the livestock building.
19. On 28 February 2012 the Council re-consulted with all consultees including Mr Ainsley, the Parish Council and the National Trust. Whilst the National Trust maintained their objection Natural England reiterated that they had no objection. English Heritage had no comments to make on the proposal. The AONB partnership expressed concern at external lighting.
20. On 13 March 2012 the Committee undertook a site inspection. According to the record sheet the visit lasted about 40 minutes
21. On 27 March 2012 NPPF came into force. A Briefing Note on the effect of NPPF was sent to the Committee on 30 March 2012
22. The application was considered by the Committee on 5^th April 2012. The Committee had before them a report published on 26^th March 2012 from Mr Armstrong. Oral representations were made by Mr Ainsley and Mr Sclater. The committee chairman then spoke in his capacity as the ward member. Mr Gaston spoke in support of the proposal.
23. The Committee resolved to grant planning permission. The summary reasons for granting permission were:

"The proposals would result in an acceptable form of agricultural development in this countryside location that would not cause any significant or demonstrable harm and effects to the site and surrounding area, including the Northumberland Coast AONB and other designated sites in the locality, the setting of Dunstanburgh Castle, the amenity of local residents, tourism and highway safety. In addition it is felt that the applicant has demonstrated a need for a temporary dwelling on the site in relation to the proposed farming activity. The proposals are therefore considered to be in accordance with Policies RE6, RE16, RE21 and RE32 of the Alnwick District Wide Local Plan; Policies S3, S11, S12, S13, S14, S15 and S16 of the Alnwick District LDF Core Strategy; Policies LP2 and LP5 of the Northumberland Coast AONB and Berwickshire and North Northumberland Coast EMS Management Plan; and the National Planning Policy Framework."

24. The permission was issued on 19^th April 2012

4. Ground 1

The complaint

25. The Council failed to take into account material considerations namely its agricultural consultant's viability figures and failed to give an opportunity for comment on those figures. It also failed to consider or address the figures produced by Ms Kathryn Vagneur.

Planning Policy

26. It is common ground that government guidance is a material planning consideration to be taken into account by the Committee in reaching a decision. The relevant guidance was contained in PPS7 prior to 27^th March 2012 and paragraph 55 of NPPF thereafter.
27. Under Annex A, paragraph 12(iii) of PPS7 the applicant had to provide clear evidence that the proposed enterprise has been planned on a sound financial basis
28. Paragraph 55 of NPPF provided

Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:

? the essential need for a rural worker to live permanently at or near their place of work in the countryside"

29. Thus the guidance in paragraph 55 of NPPF is significantly less onerous than in PPS7.

The factual basis for the complaint.

30. An objector – Mr Townsend sought to analyse figures which Mr Gaston had provided and suggested that any profit from calf rearing at Dunstan Steads would be minimal. As a result Mr Armstrong commissioned a report from Alan Jackson as to whether:

The current proposal … would be sufficient to satisfy the tests in respect of functional need and viability in order for consideration of a temporary dwelling on the holding in accordance with PPS7.

31. In the 2010 application Mr Jackson had advised that the proposal passed the financial and labour tests there was at that time no functional need for a dwelling.
32. Mr Jackson submitted his report on 7^th March 2012. He concluded (amongst other things) that there is clear evidence that

The proposed enterprise has been planned on a sound financial basis.

33. In the covering email he made the point that Mr Gaston did not have to show that the enterprise was financially viable, just that it had been planned on a sound financial basis. In addition to the income from 100 calves there would be the income from the arable unit which together make a viable unit.
34. Mr Ainsley submitted to the Council a report dated 3^rd April 2012 from Ms Kathryn Vagneur in response to the Jackson report. She pointed out that

'Mr Jackson offers absolutely no evidence in support of his conclusion that "the proposed enterprise has been planning on a sound financial basis"

35. Ms Vagneur carried out her own assessment of the viability of a small calf rearing operation as proposed and concluded that it would be loss-making, even without considering the full overheads or the cost of capital invested
36. On 5^th April 2012, the day of the committee meeting, Mr Armstrong emailed Mr Jackson saying:

"Would it be possible to send a copy of the calculations that you've used to determine the enterprise has been planning on a sound financial basis please, just so that we have this for Committee tonight?"

37. This was obviously in response to Ms Vagneur's criticisms. Mr Jackson did not provide any estimated figures until 9^th April 2012 (i.e. after the meeting). Those estimates showed a gross margin for the arable operations on Dunstan Steads Farm of £131,787 and a gross margin for calf rearing of £7,900. The fixed costs of labour, power, machinery, overheads, interest and depreciation totalled £129,924, leaving a farm business income of £9,763. With support payments that would rise to £49,453.
38. At the meeting Mr Ainsley's submissions included an assertion:

The report relied on a consultant who used no figures and said the application was financially sound. The proposal was based on sham economics and was unsustainable.

39. Thus the criticisms of Mr Jackson's report were specifically drawn to the attention of the Committee.

Submissions

40. Mr Harwood QC makes a number of submissions about the position. First he submits that Mr Jackson's figures suggest that the income of the business was almost entirely due to the arable farming. Calf rearing would bring in virtually no income and given would appear to be loss-making. It was an uneconomic sideline, and more likely simply a device to get a dwelling onto the site. Consequently a dwelling was not essential for an agricultural worker (under the NPPF) as the beef operation was not economic. Neither was it viable under the test applied by the Council.
41. He accordingly submits that the Council acted unlawfully. He submits that the Committee should have been advised of Mr Jackson's figures and should have concluded that the enterprise was unviable.
42. He further submitted that it is implicit in paragraph 55 of NPPF that the activity requiring proximity to the farm was not economically viable. Once it had concluded that the unit was not viable it should have concluded that there was no essential need for a rural worker to live at or near their place of work.
43. Mr White QC's submissions may also be summarised.

1. The Council had to make a planning judgment on whether there was an essential need within paragraph 55 NPPF. Whilst the judgments of Mr Ainsley and Ms Vagneur was that there was no such need, Mr Gaston asserted such a need and he was supported by Mr Jackson, the consultant instructed by the Council. The Committee were entitled to reach the judgment in favour of Mr Gaston. It cannot be described as perverse.

2. Paragraph 55 of NPPF has changed the policy. The sole test is whether there is an essential need.

3. It was not necessary for Mr Jackson's figures to be before the Committee. It was sufficient that they had his view that the enterprise was viable. In fact his figures support his view.

Discussion and Conclusion

44. I prefer the submissions of Mr White QC. Thus I accept that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular I do not accept Mr Harwood QC's submission that the NPPF requires that the proposal is economically viable. As Mr White QC points out this is a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there.
45. I also agree that Mr Jackson's evidence was that there was a need for a rural worker to take care of the livestock once calf rearing commenced as stated on the 3 April 2012. In my view the Committee were entitled to accept that evidence. It was not an irrational decision.
46. Equally I agree that the decision is not invalidated by the failure to provide Mr Jackson's figures to the Committee. The figures were not available at the date of the meeting. It is not in dispute that the Committee were provided with Ms Vagneur's report and that Mr Ainsley had the opportunity to address the meeting. In the course of his submissions he criticised Mr Jackson's report so the issue was before the Committee.
47. The Committee were entitled to reject Mr Ainsley's submission and plainly did so.
48. It follows that I reject Ground 1 of the application.

5. Ground 2

The complaint

49. The committee report was inaccurate and significantly misleading in saying that properties at the existing Dunstan Steads cottages were not suitable;

Planning Policy

50. As this complaint relates to the grant of the temporary permission for the caravan the only relevant policy is paragraph 55 of NPPF which is set out above. The question for the Court is whether the Committee's decision was irrational or one which no reasonable Committee could have reached.

Factual Basis

51. The previous farmholding at Dunstan Steads included six farm workers cottages, the farmhouse and other dwellings converted from farm buildings. They are less than 300 metres (by road) from the proposed livestock building. The cottages are no further away from the proposed building than some of them are from the original farm's buildings. Those properties had been sold off prior to the applicant's acquisition of the land. Objectors had pointed out that there was property available to buy or let at Dunstan Steads as did the local ward councillor at the meeting. One of the cottages was available for rent. The committee report's explanation for this not being suitable was:

"the applicant has advised that one of the original farm cottages is available on a short-term let but this would not be suitable as a longer term accommodation is required whilst the property is not close enough to the proposed livestock building."

52. This report was said to reflect what Mr Gaston had said in an e-mail on 22^nd March 2012:

"No 3 cottage is available on a short term let, if we were asked to vacate the property and had nowhere to live, this would not be suitable as we need long term accommodation to attend to the health and welfare of the calves, hence the need for dwelling accommodation close to the calf building. There is a house for sale on the road from Dunstan Steads to Embleton which is again to far away from the proposed calf building and furthermore, the asking price for this house is over £700,000.00, well out of our financial reach."

Submissions

53. Mr Harwood QC submitted that the committee report was irrational because Mr Gaston did not mention the distance of the cottage from the livestock building as a reason. He also submitted that a worker living in the cottages could visit the livestock at any time in any weather quite easily. He pointed out that the caravan permission is therefore short term, so any farm worker might have to leave in any event. He submitted that a tenancy of a permanent dwelling would be no worse than the temporary permission. Accordingly the Council failed to address the irrationality of preferring a new temporary dwelling permission rather than a short term let in an existing permanent building which was very close by.
54. In his skeleton argument Mr White QC submitted that the decision of the Committee was reasonable and based on the evidence before it. In paragraphs 59 to 61 of his skeleton argument he points out that the evidence before the Committee included the e-mail of Mr Gaston, the views of Mr Armstrong and Mr Jackson who supported Mr Gaston. The Committee was fully aware that No 3 was to let as it was drawn specifically to their attention.
55. In his oral submissions Mr White QC made the point that Mr Gaston had in fact sent 4 emails to Mr Armstrong on 9^th March 2012, 12^th March 2012, 20^th March 2012 and 22^nd March 2012. When these emails are read as a whole it is plain that it was Mr Gaston's expressed view that the cottage was too far away. The point appears particularly clearly in the e-mail of 12^th March where Mr Gaston says:

Embleton village is not close enough for a dwelling accommodation because of the health and welfare of the calves …

Discussion and Conclusion

56. I prefer the submissions of Mr White QC. Whilst, no doubt, it was open to the Committee to reject the planning application it cannot in my view be said to be irrational to have granted it. It was open to them to hold that there was an essential need for a rural worker to live permanently at or near the livestock building. It was a matter for their judgment whether such a need could be satisfied by a short term let of No 3. A short term let is terminable after 6 months which is far shorter than the 3 years for which the temporary permission is granted. In those circumstances the decision to grant the permission cannot in my view be said to be irrational or unreasonable.
57. It is also plain in my view that the report was not inaccurate or significantly misleading. It reflected Mr Gaston's views as expressed in his e-mails.
58. It follows that I reject ground 2.

6. Ground 3

The complaint

59. The Council failed to have regard to the NPPF policy on 'dark skies' and departed from the AONB Partnership's recommended condition on light pollution without appreciating or justifying the departure as it only imposed a condition restricting external lighting.

Planning Policy

60. Paragraph 125 of NPPF provides:

"By encouraging good design, planning policies and decisions should limit the impact of light pollution from artificial light on local amenity, intrinsically dark landscapes and nature conservation."

Factual Basis

61. This part of the AONB and Heritage Coast is renowned for its dark skies. The AONB partnership was consulted twice about the proposed development. In its first response dated 10^th January 2012 it commented:

Inappropriately designed and located lighting contributes to light pollution with adverse effect on the predominantly dark skies of this area. The expected high level of external lighting may have an adverse effect on nocturnally active species and roosting birds. If Council determines to grant any consent all lighting must be kept to a minimum, downward casting and ideally only part time security lighting triggered by motion sensors.

62. The second response dated 28^th March 2012 included:

"The Partnership has a particular concern that light pollution is avoided, so that the dark skies in this part of the county are maintained. The very high levels of interest in the series of 'skygazing' events held recently testify to the extent to which people value this particular aspect of the natural beauty of the AONB. Accordingly, a planning condition should be imposed on any grant of planning permission stating that:

Prior to development commencing, full details of the lighting to be installed shall be submitted to and approved by the LPA, and fully implemented as approved.

Reason: To help maintain the dark skies which are an important part of the natural beauty of the AONB."

63. This response was circulated to the Committee as late observations.
64. In an email to Mr Armstrong Mr Ainsley also made the point that light from the skylight of the grain store harmed moonlight views of the AONB and Castle and harmed the pursuit of astronomy in the area. He expressed concern that the proposed new building and mobile home would emit light.
65. In granting permission the Council did impose a condition in relation to the external lighting in the following terms:

'full details of any external lighting to the proposed building, including the method of control shall be submitted to the local planning authority for approval. The development shall thereafter be undertaken in accordance with the approved details'

Reason: In the interests of visual amenity and the satisfactory appearance of the development upon completion, to help maintain the dark skies which are an important part of the natural beauty of the AONB"

66. Further comments were received from the AONB on 10^th April 2013 in response to the judicial review application. Mr Feige, the Principal Ecologist said:

I can only reiterate that the response prepared by the AONB staff team recommending a planning condition to control light pollution was specifically in respect of high intensity external lighting. Internal lighting within an agricultural building was considered too weak and diffuse to require regulation through a planning condition.

Submissions

67. Mr Harwood QC submits that I should view the post decision reasoning contained in the memorandum of 10^th April 2013 with scepticism. He drew my attention to a very recent decision of the Court of Appeal in Lanner Parish Council v Cornwall Council [2013] EWCA Civ 1290. Paragraph 64 of the judgment of Jackson LJ includes:

Save in exceptional circumstances a public authority should not be permitted to adduce evidence directly contradicting its own official records of what it decided and how its decisions were reached. In the present case the officer's report, the minutes of the Planning Committee and the stated reasons for the grant of planning permission all indicate a misunderstanding of policy H20. These are official documents upon which members of the public are entitled to rely.

68. He made the point that Condition 17 does not deal with internal lighting and is thus narrower than the condition suggested in the letter from AONB of 28^th March 2012. He submits that the difference was not reported to the Committee with the result that:

The Council therefore erred in failing to have regard to material considerations, namely the NPPF policy on dark skies, the effect of light from inside the building and mobile home and the AONB Partnership's proposed condition.

69. Mr White QC referred me to sections 70(1)(a) and 55 of the 1990 Act. He pointed out that under section 70(1)(a) LPAs may grant planning permission either unconditionally or subject to such conditions as they think fit. Such conditions must be valid, must fairly and reasonably be related to the permitted development and must fulfil some planning purpose. The LPA must take into account the views of a statutory consultee but it is open to a LPA not to accept the representation from such consultee.
70. Under section 55 of the 1990 Act no planning permission is necessary to change the internal arrangements and lighting within a building.
71. Mr White QC made the point that the Committee did apply itself to the question of what condition should be imposed and imposed condition 17. There is no requirement for the Council to impose the same condition as that requested by the statutory consultee. He submitted that it is plain from the January response that AONB's concern related to the external lighting. Condition 17 deals with that concern. He submitted that it was not appropriate for a condition to control the internal lighting.
72. In his oral submissions Mr White QC drew attention to Mr Armstrong's evidence and to paragraph 206 of NPPF:

Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

73. In both Mr White QC's submission and Mr Armstrong's view a planning condition relating to internal lighting would not meet those requirements. Mr White QC submitted that it would be unenforceable.

Discussion and Conclusion

74. It is plain that the Council did consider the NPPF dark sky policy and condition 17 was designed to deal with that policy. I agree with Mr White QC that the Council was not obliged to impose a condition in precisely the same terms as those suggested by AONB.
75. I also see no reason not to accept the reasoning in the memorandum of 10^th April 2013. I accept of course that the reasoning has to be viewed with some caution. However in this case it is in my view wholly consistent with the letter of January 2012. In my view the whole of the cited paragraph refers to external lighting. The suggestion that the reference to downward casting lighting and security lighting might refer to internal lighting appears to me to be fanciful.
76. In my view this case is distinguishable from Lanner. The evidence of Mr Feige is not inconsistent with the letter of January 2012.
77. I would accordingly reject Ground 3.

7. Ground 4

The complaint

78. The Council erred in law in adopting an EIA screening opinion without considering the effect on the historic environment and it failed to 'clearly and precisely set out the full reasons' for its decision;

EIA assessments

79. The rules relating to EIA assessments date back to a Council Directive (85/337) of June 27 1985. The rules were originally implemented by The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Following amendments to the 1985 Directive in 1997 the regulations were replaced by The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

The 1999 regulations

80. Under reg 2 of the 1999 regulations an EIA application refers to a development for which an EIA is necessary. Included within this category is a Schedule 2 development "likely to have significant effects on the environment by virtue of factors such as its nature, size or location". Included within the definition of Schedule 2 development is a development where any part of the development is to be carried out in a sensitive area. An AONB is a sensitive area.
81. Where a request for a Schedule 2 development consent is not accompanied by an environmental statement, determinations concerning the need for an EIA are made by the LPA in the form of a screening opinion.
82. A screening opinion was defined as "a written statement of the opinion of the relevant planning authority as to whether development is EIA development"
83. I was referred to 2 cases on the 1999 regulations.

84. R(Mellor) v Secretary of State [2010] Env L R 2 was a decision of the European Court of Justice. Mr Mellor had challenged a screening opinion on the basis that no or no adequate reasons had been given for it. The Court held that it was not necessary that the screening opinion should set out the reasons for its determination. However

If an interested party so requests the competent administrative authority is obliged to communicate to him the reason for the determination or the relevant information and documents in response to the request made.

85. R (Loader) v Secretary of State [2011] EWHC 2010 is a useful decision because Lloyd Jones J explains in detail the 1999 Regulations, sets out the relevant guidance from Circular 2/99 and the European Guidance. I shall not lengthen this judgment by rehearsing that section of the judgment. It also contains a review of a number of authorities.

84. Thus, in paragraph 38 he referred to R (Jones) v Mansfield D.C. [2003] EWCA Civ 1408; [2004] Env. L.R. 21 where Dyson L.J. held in relation to earlier EIA Regulations that the question whether the development would be likely to have "significant effects on the environment by virtue of factors such as its nature, size or location" was a matter for decision by the local planning authority subject to review on Wednesbury grounds. Dyson L.J. observed (at paragraph 17):

"Whether a proposed development is likely to have significant effects on the environment involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case."

85. In paragraphs 41 to 45 Lloyd-Jones J considered in some detail the decision of the Court of Appeal in R (Bateman) v South Cambridgeshire D.C. [2011] EWCA Civ 157. In paragraph 19 of that decision Moore Bick LJ said:

…I do not think that one should attempt to place too rigid an interpretation on the word "significant" in this context, but the main difficulty I have with this part of Mr. Drabble's argument is that, if his submissions are both correct, an EIA would be required in virtually all cases in which a development might possibly have some effect on the environment, which does not seem to me to be what the directive intended. However, for reasons which will become apparent it is not necessary to reach a final decision on either of these questions in the present case. I would therefore prefer not to place a gloss of my own on the words used in the Regulations and leave it to planning authorities to decide on a case by case basis whether the development under consideration is likely to have a significant effect on the environment, as that expression is to be understood in the light of the developing case law of the European Court."

86. In paragraphs 65 to 68 the judge considered the effect of Mellor in the light of a number of authorities on the adequacy of reasons. The points made can be summarised:

1. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for the decision.

2. It is important to remember what the purpose of a screening opinion is. It is to ascertain whether a development proposal requires an environmental assessment under the Directive. Detailed reports are not required. What is required is an initial assessment of an intended proposal.

3. A screening opinion should not be read like a statutory provision but should be interpreted just as it would be by a well informed reader who was aware of the character of the site and the background of the proposal. It is not necessary to refer to all relevant documents that may have been relied upon.

4. A screening opinion is not intended to involve a detailed assessment of factors relevant to the grant of planning permission; that comes later and will ordinarily include an assessment of environmental factors, among others. Nor does it involve a full assessment of any identifiable environmental effects. It involves only a decision, almost inevitably on the basis of less than complete information, whether an EIA needs to be undertaken at all.

5. The court should not impose too high a burden on planning authorities in relation to what is no more than a procedure intended to identify the relatively small number of cases in which the development is likely to have significant effects on the environment.

6. It is clear from Mellor that when adopting a screening opinion the planning authority must provide sufficient information to enable anyone interested in the decision to see proper consideration has been given to the possible environmental effects of the development and to understand the reasons for the decision.

The 2011 Regulations

87. The 2011 Regulations were made in the light of the decision in Mellor. As Lloyd Jones J pointed out in paragraphs 16 and 17, under reg 4(6) of the 1999 Regulations where a screening opinion is to the effect that a development is an EIA development

"that opinion or direction shall be accompanied by a written statement giving clearly and precisely the full reasons for that conclusion."

88. There was no equivalent provision where the screening opinion was to the opposite effect. The 2011 regulations changed this. Thus under reg 4(7)(a) every screening opinion adopted by the LPA now has to be accompanied by a written statement giving clearly and precisely the full reasons for the conclusion.

Factual Basis

89. There were 2 screening opinions one dated 18^th November 2011 and the other dated 21^st March 2012. They are identical and read:

The development falls within the description at paragraph 1(b) and (c) of Schedule 2 of the 1999 regulations as amended and is in a sensitive area.

In the opinion of the [LPA] having taken into account the criteria in Schedule 3 in the regulations, the development would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Therefore the development for which planning permission is sought … is not development for which an EIA would be required.

90. Each opinion was accompanied by a completed screening checklist. The check list gives a brief description of them development and considers a number areas where there is possible impact on the environment. It identifies that there will be a loss of greenfield land, that there is potential visual impact on protected sites that will be permanent. Most of the answers to the questions in the check list are in the negative.
91. Mr Harwood QC has two criticisms of the checklist. First, it fails to identify the national and locally based heritage sites - Dunstanburgh Castle and the conservation area.
92. Second it does not set out 'clearly and precisely' the 'full reasons' for the decision.

In the evaluation of the significance of the environmental effects a large number of questions are answered 'no' without any explanation. Given the European and national designations which might be affected by the proposal, he submitted that an explanation was required. The checklist accepts there is a risk that protected sites, areas or features will be affected saying 'Yes – potential for visual impact'. There is then no explanation as to whether or why that potential visual impact was not a likely significant effect on the environment. The list of protected locations in the checklist omitted the historic environment in any event.

93. In his witness statement Mr Armstrong points out that he has prepared 2 screening opinions, the first in relation to the original scheme and the second in relation to the amended application. He says that the opinions were undertaken against the background of the 2 applications and the numerous consultation responses and comments from other interested parties. He draws attention to the correspondence with English Heritage and the Council's Conservation Officer. He concludes his comments on this ground in this way:

It was my opinion and that of my senior colleagues that the development would not affect the setting of castle or of the conservation area. However I can categorically state that in preparing the screening opinion I was fully aware of issues in respect of the historic environment, which is evidenced in seeking comments from English Heritage and the NCC Conservation Officer on both applications and in the consultation responses and emails subsequently received from each of them. … My judgment was that the proposal would not have any significant effect on the environment which is also clearly evidenced in the consultation responses received during the course of the application and in the Committee report. In my opinion the visual impact arising from the development was not of a scale that would be sufficient to warrant EIA.

94. In answer to these submissions Mr White QC drew my attention to the authorities on the 1999 Regulations which I have set out above. He went on to submit:

1. The Council did consider the effect of the development on the historic environment.

2. The reasons provided were adequate

3. No prejudice of any kind has been suffered by either Mr Ainsley or the Parish Council

4. If the court concludes that the effect on the historic environment was not considered the Council would have reached the same conclusion as to whether to require a screening opinion or not.

95. He pointed out that the screening opinion was carried out by Mr Armstrong who was the case officer who considered all the applications. Mr Armstrong had a site meeting in January 2011 to consider the issue of the setting and views of Dunstanburgh Castle. He consulted both English Heritage and the Council's Conservation Officer. He advised members to view the site in the context of Dunstanburgh Castle at the site visit.
96. He submitted that the reasons given were adequate. They clearly set out that the view was reached by officers that the proposal would not have a significant effect taking into account factors, such as its nature, size or location. That analysis was completely in accord with the legal requirements for the screening opinion.
97. He submitted that there is, in any event, no prejudice because it is absolutely clear that based on the officer assessment and the vast number of statutory consultee responses no one has credibly alleged that the development would have a significant effect on the environment requiring an EIA.
98. He pointed out that it was the judgment of the Council's officers and none of the statutory consultees have ever suggested that this is wrong. It is significant that the castle is 1.6 km from the site. On any view no one could or did conclude that the proposal would have a significant effect on the castle.

Discussion and Conclusion

99. I am quite satisfied that Mr Armstrong did consider the impact on Dunstanburgh Castle when he wrote the screening opinion. He consulted English Heritage and the NCC Conservation Officer. Indeed, as Mr White QC pointed out, he wrote to the Conservation Officer on the same day as he signed the screening opinion asking if there was anything to add on the setting of the castle or the views out of the Conservation area.
100. It is something of a moot point whether the check list itself refers to the historic environment. Mr White QC drew my attention to section 2(c) where there is a reference to it being within the Heritage Coast and to section 3(c) where there is a reference to the impact on protected sites. Mr White QC also drew to my attention the fact that the Screening opinion was on the planning register with the check list and all consultation responses.
101. I am quite satisfied that the screening opinion was not irrational in the Wednesbury sense. In the light of the decisions referred to above I am equally satisfied that under the 1999 Regulation the documents on the planning register would have provided adequate reasons for the decision. The reasons did not have to be detailed. They were to be addressed to a well informed reader with knowledge of the background. The court should not place too high a burden on LPAs.
102. However this case has to judged in accordance with the 2011 Regulations which came into force on 24^th August 2011. Those regulations require a written statement giving "clearly and precisely" the "full" reasons for the decision. To my mind the check list is not such a statement. It does not purport to be such a statement. It does not purport to explain the reasons for the decision. It is a check list intended to help users decide whether an EIA is required.
103. It follows that I agree with Mr Harwood QC that there was a breach of reg 4(7)(a).
104. However I also agree with Mr White QC that no prejudice has been shown to Mr Ainsley or the Parish Council by reason of the breach. In particular I agree that it is possible to glean the reasons from the documents on the register. None of the Consultees considered that there was a significant effect on the environment. There is, in my view no realistic possibility that any other view would be formed by the Council if the decision was quashed.
105. Thus although I consider that there was a technical breach of reg 4(7)(a) I shall not quash the planning permission. I accordingly reject Ground 4.

8. Ground 5

The complaint

106. The application should have been advertised as affecting the setting of a listed building and the character and appearance of a conservation area, under regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990;

The Law

107. By reg 5A where an application for planning permission is made and the LPA

'thinks that the development would affect the setting of a listed building or the character or appearance of a conservation area'

Then the LPA is required to advertise the planning application in a local newspaper and to send a copy of the advertisement to English Heritage.

108. As Mr Harwood QC pointed out the question is not whether the setting is adversely affected it is whether the LPA thinks it is affected at all.
109. In his skeleton argument Mr Harwood QC referred me to the decision of Hickinbottom J in R(Miller) v North Yorkshire County Council [2009] EWHC 2712 for a discussion of the meaning of the word "setting";

"There is no definition of "setting" in this context, but it was common ground before me that it is a matter of judgment to be determined in visual terms, with regard being had to (i) the view from the monument towards the development (ii) the view from the development towards the monument and (iii) any other relevant view which includes both the monument and the development (an approach adopted in Revival Properties Ltd v Secretary of State for the Environment [1996] JPL B86 ). In other words, the setting of a monument has to be considered "in-the-round".

Factual Basis

110. It is not in dispute that there was no advertisement in accordance with reg 5A. In paragraph 37 of his witness statement Mr Armstrong deals with it in this way:

I was very much aware of issues in relation to the potential impact upon the historic environment …Whilst these have been fully considered during the course of the application a judgement was made that the proposal would not affect the setting of Dunstanburgh Castle or the Embleton conservation area. The judgment was made on the basis of my discussion on site with Ms Catherine Dewar of English Heritage on 25.01.2011 … and also the comments of the NCC Conservation Officer dated 07.01.011. Due to the distance of 1.6 km from the site to the castle and 0.6 km to the conservation area boundary and the small scale nature of the development as a typical form agricultural building on farmland in the countryside it was my opinion that the proposal would not affect the setting of the listed building or the character and appearance of the conservation area …

111. If this evidence is correct it is virtually a complete answer to Ground 5. However Mr Harwood QC suggested that this evidence was inconsistent with a number of contemporaneous documents and that he should be permitted to cross-examine Mr Armstrong.
112. Cross-examination in judicial review proceedings is rare but not unknown. In any event I acceded to Mr Harwood QC's submission though I limited the cross-examination to 40 minutes and to the issues relating to Ground 5.
113. The matters relied on by Mr Harwood QC include:

1. the fact that Mr Armstrong consulted English Heritage and the Conservation Officer.

2. the fact that Mr Gaston produced a Landscape and Visual Impact Assessment in February 2012. Those assessments are of visual impact on views rather than effect on the setting of a heritage asset but show the development to be within the Castle's setting and to have a visual impact.

3. on the site visit on 13^th March 2013 the Committee were invited to consider the views out of the conservation area towards the castle.

4. that there were a number of references to Core policy S15 including in the reasons for the decision. Policy S15 provides:

"The district council will conserve and enhance a strong sense of place by conserving the district's built and historic environment, in particular its listed buildings, scheduled ancient monuments, conservation areas and the distinctive characters of Alnwick, Amble, Rothbury and the villages.

All development involving built and historic assets or their settings will be required to preserve, and where appropriate, enhance the asset for the future."

114. When he gave evidence Mr Armstrong said he was at all times aware of the need to advertise under reg 5A if he thought that the setting was affected. He completed the planning application validation checklist. At that time he had formed the view that there was no effect on the setting. He agreed he had consulted English Heritage. This was because of the objections that had started to come in. He later said that English Heritage was consulted to keep them informed. There would have been queries raised by the objectors if no consultation had taken place. Whilst he accepted that the LVIA indicated a moderate impact and was referred to in the report to the Committee he repeated his view that there was no effect on the setting.
115. He accepted that on 13^th March 2012 the views to the castle were shown to the Committee. He also accepted that the reason for this was to consider the effect of the development on the setting of Dunstanburgh Castle. However he made the point that English Heritage did not come back with any comments and that there was no request for a heritage statement from the Conservation Officer.
116. When questioned about the report to the Committee and the reasons he repeated that he still considered that there was no effect on the setting.

Submissions

117. Mr Harwood QC submitted that in the light of the above matters Mr Armstrong and the Committee must have considered that the setting was affected. In paragraph 90 of his skeleton argument he put the matter thus

(a) The Council view in its final form is that of the committee as expressed in the planning permission which accept that impacts on the castle have to be addressed by conditions. Regardless of Mr Armstrong's views, the Council considered that there was an effect on setting;

(b) Mr Armstrong's evidence is untrue. All of the contemporaneous documents, including those which he wrote, show that there was an effect on setting, the questions being the extent of that effect and whether it was harmful. None of those documents support a conclusion that Mr Armstrong considered that there was not an effect on setting or that he was aware of regulation 5A at all. The absence of a protocol and the systemic regulation 5A errors being made by his team at the time show how this was entirely overlooked.

118. Mr Harwood QC referred me to the decision in R (Friends of Hethel) v South Norfolk County Council [2011] 1 WLR 1216 as authority for the proposition that a failure to publicise the decision will lead to it being quashed.
119. Mr White QC invited me to accept the evidence of Mr Armstrong which he described as clear consistent and credible.
120. Mr White QC submitted that reg 5A was never engaged because the proposal did not affect the setting of Dunstanburgh Castle. This was the view expressed in paragraph 9.3 of the report to the Committee; it was also the view expressed by English Heritage and the Northumberland Coast AONB officer. It was a planning judgment and was not perverse or irrational.
121. He submitted that the documents relied on by Mr Harwood QC do not establish that either Mr Armstrong or the Council had taken the view that the setting was affected. He submitted:

1. that English heritage were consulted for consistency in the light of the objections that had been received.

2. that the LVIA had been requested by the AONB partnership

3. that it was inevitable that the Committee would look at such views

4. that the S15 policy document was material and had to be taken into account and the conditions that refer to policy S15 are not relevant to regulation 5A

122. He also submitted that there was no prejudice to Mr Ainsley or the Parish Council as a result of a failure to advertise. No party has been identified who would additionally have come forward and supported them. All relevant parties were aware of the application and made representations.
123. He drew my attention to the decision in Wainwright and submitted that the decision in Hethel was distinguishable. He made the point that the failure in Hethel was a failure to notify English Heritage. Their views would plainly have been relevant to the whether the effect on the setting was adverse or not. In this case, of course, English Heritage was consulted. Its views were made known to the Committee.

Discussion and Conclusion

124. I formed a favourable impression of Mr Armstrong when he gave evidence. He struck me as an honest witness doing his best to assist the Court. I accordingly accept that he was at all times aware of the provisions of reg 5A. The fact that other officers dealing with other cases made mistakes with regard to reg 5A does not deter me from this view.
125. Mr Armstrong struck me as a conscientious officer who plainly undertook his duties with care. There is no evidence that he cut corners. I accordingly accept his evidence that he formed the view that the setting of Dunstanburgh Castle was not affected. This was not a perverse or irrational view. Dunstanburgh Castle was 1.6 km away and none of the consultees had suggested that there was an effect.
126. I am not persuaded that the documents relied on by Mr Harwood QC force me to the conclusion that either Mr Armstrong or the Council had formed a different view. It follows that I agree that reg 5A was not engaged.
127. In case I am wrong about this I agree with Mr White QC that on the facts of this case there is no prejudice to either Mr Ainsley or the Parish Council by reason of the failure to advertise. This is case where there were extensive objections, where Mr Ainsley and the Parish Council made representations at the meeting. No one has been identified who might have come forward as a result of the advertisement. There has been no suggestion of what new objection such a person might have made. The reality is all objections were before the Committee. In the end the Committee had to make and did make a planning judgment. I am not satisfied that the absence of an advertisement might have made any difference to that judgment.

9. Ground 6

The complaint

128. In breach of a legitimate expectation created by paragraph 7.28 of the Council's Statement of Community Involvement, the Council failed to notify objectors to the planning application, including the National Trust, of the date of the committee meeting and thereby prejudiced their ability to appear at the meeting or make written representations on the committee report and so the support they could give to the Claimants.

Policy and/or law

129. Statements of community involvement are required by section 18 of the Planning and Compulsory Purchase Act 2004. Section 18(2) provides, as relevant:

"The statement of community involvement is a statement of the authority's policy as to the involvement in the exercise of the authority's functions under sections 19, 26 and 28 of this Act and Part 3 of the principal Act of persons who appear to the authority to have an interest in matters relating to development in their area."

130. The principal Act is the Town and Country Planning Act 1990, Part 3 of which is concerned with planning applications. The Statement of Community Involvement therefore sets out the Council's policy as to the involvement of the public in planning applications.
131. The Council's Statement of Community Involvement says at paragraphs 7.27 and 7.28:

"Speaking at planning committee

7.27 Planning committees are public meetings which anybody can attend. If you have written in with comments on an application and we have received them before the publication of the committee report, then you will have the right to speak at the planning committee (although we will avoid duplication where lots of people make identical points).

7.28 We will let you know at least 5 working days before the date of the committee at which the application will be considered that you have an opportunity to speak. If you wish to speak you must notify Democratic Services (see contact details in chapter 10) before 12 noon on the day before the committee, but you can decide at anytime that you no longer wish to speak."

132. The Council's Development Management Charter says at paragraph 7.8

'Notification of the committee date will be sent out to all those who have made written representations on an application at least 5 working days before the date of the committee.'

Factual Basis

133. The National Trust was identified as a consultee at the validation stage and was consulted on 4^th November 2011. It was the owner of Dunstanburgh Castle and a neighbouring land owner.
134. A detailed letter of objection was sent by the National Trust on November 23^rd 2011. In the letter the National Trust asked to be notified of the outcome of the application. It did not ask to be notified of the date of the committee meeting.
135. The National Trust was consulted again on 28^th February 2012 following the amendment to the application. It responded on 12^th March 2012. In that letter it maintained its objection and asks to be informed how the application progresses.
136. It is common ground that the National Trust was not specifically informed of the date of the Committee Meeting. According to Mr Armstrong it is not the policy of the Council to notify consultees. The date of the meeting was, however, advertised on the Council's web site. When he spoke at the meeting Mr Ainsley made specific reference to the National Trust's letter commenting that it ought to have been referred to in the body of the report to the Committee and not just an appendix.
137. In an email dated 28^th June 2012 Jenny Ludman (who was dealing with the matter on behalf of the National Trust) said that it was impossible to know what would have happened if she had been notified of the date of the meeting. It is unlikely that she would have attended herself but a member of the National Trust property staff might have spoken. She would have read the Committee report and then made a decision whether it was necessary to refute something in the report. It is very likely that she would have sent in additional comments to put before the Committee.

Submissions

138. Both Counsel referred me to R(Kelly) v London Borough of Hounslow [2010] EWHC 1256 (Admin).in which it was held that a failure to notify an objector of the date of the meeting was such a breach and that, on the facts of that case, the permission was quashed.
139. Mr Harwood QC submitted that there was therefore a legitimate expectation that persons who made representations on the planning application would be notified of the committee meeting at least five working days before it took place. This would enable them to speak at the meeting and give them warning to consider the committee report and an opportunity to make further written representations to officers and members in the light of the report
140. Mr White QC submitted that even if there has been a breach of legitimate expectation, it must be shown that there has been prejudice. In addition there is still a discretion as to whether to quash the decision. He also submitted that a Court should only interfere rarely where a Claimant who has been properly consulted complains of a failure to consult others.
141. Mr White QC pointed out that the date of the meeting was advertised on the website, that the National Trust are not party to these proceedings, that the National Trust did not ask to be notified of the date of the meeting.
142. He pointed out that no new issues could have been raised by a public speaker as the purpose of public speaking is to reinforce points already made in written submissions. Additionally objectors were only given 5 minutes in total. Two objectors spoke in any event. If the National Trust had attended it would have had a maximum of 1 minute and 40 seconds to reiterate their objections.
143. He submitted that the Council's policy related to the involvement of the public in planning applications and not to organisations such as the National Trust.
144. This is a case where the National Trust has decided not to pursue the matter. It would, he submitted be inappropriate to permit the Claimants to pursue a point of law on legitimate expectation on behalf of another party who has withdrawn from taking any part in these proceedings.
145. He referred to the decision of the Court of Appeal in R(Wainwright) v Richmond on Thames [2001] EWCA 2062 where Clarke LJ (as he then was) said :

I accept the submission that in a case of this kind, it will only be in a rare (or at least) comparatively rare case that a claimant who has the opportunity of making detailed representations will be able to rely upon a failure to consult others. I also accept this is not such a case.

146. Mr White QC submitted that neither Mr Ainsley nor the Parish Council have suffered any prejudice as a result of a failure to notify the National Trust or any other party. Mr Ainsley spoke at the meeting and specifically referred to the letter from the National Trust. In any event it is by no means clear on the evidence that the National Trust would have attended the meeting even if they had known about it.

Discussion and Conclusion

147. In my view the Council's Statement of Community Involvement applied to the National Trust. It follows that the National Trust should have been informed of the date of the meeting. However I am wholly unpersuaded that the failure has prejudiced either Mr Ainsley or the Parish Council or that either of them should be entitled to rely on the failure where, as here, the National Trust have declined to get involved in the litigation.
148. I accept that the decision in Wainwright is not conclusive. As Mr Harwood QC pointed out the facts of that case are different from this. However I agree with Mr White QC that this is not one of those comparatively rare cases where Mr Ainsley or the Parish Council can rely on the failure to notify the National Trust of the hearing date. My reasons, which largely follow Mr White QC's submissions are:

1. The National Trust expressed no interest in attending the hearing. In the letter of 23 November 2011 they asked to be informed of the outcome.

2. In any event the National Trust wrote 2 letters of objection setting out their views in detail. Mr Ainsley drew attention to those objections in his oral representations. Even if Ms Ludman had sent a further email it is not clear what additional points she would have made. If she had wished to make oral representations she would only have had a very limited time in which to make them.

3. This was an application where there were significant objections. Thus the Committee were fully aware of the objections.

4. The National Trust was party to the pre-action protocol letter but has decided expressly not to be party to the judicial review application. This may well be because it has suffered no significant prejudice.

5. No one has identified what additional points would have been made by the National Trust. It is in fact unclear what they would have actually done.

149. In those circumstances I am not satisfied that Mr Ainsley or the Parish Council could or would have gained any significant extra support from the attendance of or further correspondence from the National Trust.

10. Ground 7

The complaint

150. The Council erred in considering whether appropriate assessment was required under the Conservation of Habitats and Species Regulations 2010 as (a) it failed to have regard to the Special Protection Area, (b) failed to appreciate that Natural England's advice on the current application had overlooked the existence of European sites in the vicinity and (c) failed to have regard to the fact that when consulted on the previous planning application Natural England considered that if certain conditions were imposed appropriate assessment was not required and the Council failed to impose those conditions.

Policy

151. The SAC and the SPA are Europeans sites for the purposes of the Conservation of Habitats and Species Regulations 2010 and the Council is a competent authority under those regulations. Regulation 61(1) provides:

"A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—

(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management of that site,

must make an appropriate assessment of the implications for that site in view of that site's conservation objectives."

152. If an appropriate assessment has to be carried out then the project may only be approved if 'it will not adversely affect the integrity of the European site' (regulation 61(5)) unless there is no reasonable alternative and there are imperative reasons of overriding public importance to allow the scheme (regulation 62). In considering this matter the Council must consider how the project is proposed to be carried out and any conditions or restrictions which they would propose (regulation 61(6)).

Factual basis

153. In 2010 Natural England were consulted on the original proposal. In the response to the consultation it identified the distance (645m) of the proposed building from the SSSI, SPA and SAC. It also identified the Embleton Burn which runs into the sites and was only some 100m to the west and slightly downhill.
154. It pointed out that there was potential for a decrease in the water quality of the stream as a result of run off from the building. However it concluded that subject to 4 conditions Natural England had no objection to the proposal. It did not consider that the proposal was likely to have a significant effect on the SSSI, SPA or SAC.
155. The conditions may be summarised:

Prohibiting pollutants from construction or operational activities entering the Embleton Burn;

Pollutants (including feed material and cleaning agents) not being stored in an area with potential to flood;

Roof water being kept separate from the effluent tank and not being allowed to run onto any concrete or hard surface;

Fencing off the shed and grain store to prevent access to the field.

156. A different officer from Natural England responded to the consultation on 10^th November 2011. In his response he noted that the application was in close proximity to the SSSI. His response was:

…given the nature and scale of the proposal Natural England raises no objection to the proposal being carried out in according to the terms and conditions of the application … on account of the impact on designated sites.

157. The Environment Agency responded on 24^th November 2011. It had no objections to the proposal but welcomed the fact that the calf rearing was to take place on deep bedded straw and the provision of an effluent tank.
158. On 10^th January 2012 the AONB expressed concerns. It expressed the view that the information provided was insufficient for it to assess any adverse effects to designated sites and it recommended an assessment of potential adverse effects.
159. On 2^nd March 2012 a response by Natural England to the amended application stated that the amendments to the proposal were unlikely to have significant impacts.
160. On 28^th March 2012 a different ecologist on behalf of the AONB took a different view. He drew attention to the Embleton Burn flowing into the North Sea. He recognised that concerns had been expressed by local people relating to this aspect of the proposal. He drew attention to the views of the Environment Agency (summarised above) and stated that the AONB partnership deferred to the expert advice from the Environment Agency.
161. On 2nd April 2012 the Council's ecologist prepared an assessment in relation to reg 61 of the Conservation of Habitats Regulations 2010. He concluded that there would be no significant effect on European sites. The reasons given are:

The design of the livestock building and effluent tank has been scrutinised by the Environment Agency, who state that it is above and beyond their requirements. EA has also advised that storage of manure is regulated so as to prevent run off to watercourses. Natural England have also advised that there is unlikely to be any significant effect on designated sites. On this basis it is concluded that any effect will be de minimis.

162. In granting permission the Council did impose two conditions (11 and 12) designed specifically to deal with the mixing of calf feed and the disposal of animal waste. These conditions were not as extensive as those suggested by Natural England in 2010.

Submissions

163. Mr Harwood QC had a number of criticisms:

1. He criticised the Council for failing to impose the conditions suggested in the 2010 letter from Natural England. He makes the point that the Council failed to consider those conditions at all.

2. He suggested that Natural England failed to address the European sites in its response in November 2011. He suggests that the advice only referred to the SSSI.

3. He submitted that as the letter from the Environment Agency does not specifically mention the European sites the advice did not relate to them.

4. He submitted that the committee report did not refer to potential impacts to European sites and did not address whether an appropriate assessment was required.

5. He accordingly submitted:

The Council therefore acted unlawfully in failing to have regard to one of the European sites, misunderstanding the 2011 Natural England response and failing to have regard to potential impacts and conditions which should be imposed as advised by Natural England in 2010.

164. Mr White QC took a robust line on these criticisms. He submitted that no sensible council properly directing itself would ever have considered there was a significant effect from the proposal. The only risk is the escape of material from the effluent tank. There was to be a straw bedded system for the calves. It is inconceivable that this could have a significant effect on the European sites. The view that the effect was de minimis was plainly right. He drew attention to the view of the Environment Agency which he described as "key".
165. He submitted that it is inconceivable that Natural England's response in 2011 did not refer to the European sites. He drew attention to the reference to "designated sites" in the response. He also pointed out that it is inconceivable that the officer responding in 2011 would not have had access to the response in 2010.
166. Finally he submitted that the effect on European sites was considered by the Committee. It was considered by the ecologist for the Council. The Environment Agency's and AONB's 2011 responses were specifically mentioned in the Committee report.

Discussion and Conclusion

167. I prefer the submissions of Mr White QC. I agree that it is completely unrealistic to suggest that this proposal will have a significant effect on the European sites. It is equally unrealistic to suggest that any of the Consultees did in fact not consider them in their responses. I agree with Mr White QC that the plural use of the word sites in the natural England response is significant.
168. In my view the Committee was entitled to accept the view in the assessment that any effect on the designated sites would be de minimis. It was not irrational or perverse.
169. Equally there was no obligation on the Council to impose the conditions suggested in the 2010 letter. The conditions chosen are not irrational.
170. I accordingly reject Ground 7.

11. Conclusion

171. In my judgment all the grounds of challenge fail and the application falls to be dismissed.

Note 1   It is not in dispute that in addition to the foul sewage tank for the caravan the application also included a treatment plant for the livestock building.    [Back]