Comply means ‘comply’ when discharging ecology condition
R (Laing) v Cornwall Council
Condition 6 to a controversial outline consent for nine houses on a sensitive village site in Illogan, Cornwall (granted on appeal) required compliance with an ecological appraisal which required inter alia 2x replacement of a section of Cornish hedge to be lost for access. The Court held the officer applied the wrong test and approached its task too loosely. HHJ Jarman held that the question the officer should have asked but did not, is whether the ecological plan complied with the recommendations of the Preliminary Ecological Appraisal (“PEA”).
The Claimant challenged the planning officer’s reliance on R. (Cathie) v Cheshire West and Chester Borough Council [2022] EWHC 2148 as authority for the proposition that “the appropriate test for discharging a condition is whether the application is “satisfactory” which does not mean “ideal” and that “a condition cannot be read in a way that imposes unreasonable requirements on the interested parties.”
The Claimant submitted that on the wording of condition 6 to discharge the ecology plan it had to comply with the recommendations, mitigation and enhancement measures contained within the PEA and that, in this context, comply means “to follow”. The Claimant argued that, unlike some conditions of this nature, condition 6 does not state that the ecology plan should be “in general accordance with” or “have regard to” the PEA. The PEA is intended to be followed. That is because the Outline Permission was granted on the basis that its recommendations would be delivered to secure ecological mitigation.
The Claimant cited R. (Friends of the West Oxfordshire Cotswolds) v West Oxfordshire District Council [2023] EWHC 901 (Admin) (also decided by HHR Jarman), which held that the condition in that case “permits no room for officers subsequently to vary the width of the buffer zone on an application to discharge. It could have been worded in that way, but it was not. What it requires was is that the works and maintenance are to be carried out as per the approved plans, which provided for a 5 meter buffer zone.” In that case, the subsequent discharge of a condition attached to the permission was quashed on the basis that did not achieve a 5-metre buffer.
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Commentary
The Claimant sought to hold the local planning authority to account for failing to require strict adherence to the requirements of the ecology conditions in what she perceived as ever-decreasing ecological protections in her community and ever-increasing housing on sensitive greenfield land.
This case establishes an important principle that conditions which impose requirements to comply with ecological standards to protect ecology do not give scope for officers to assess compliance as “satisfactory”; when there are precise standards for ecology, like replacement hedges, the officers must adhere to the specific wording of the condition when the grant of permission was given – in short, comply means comply.