Cheshire East Council

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Second judicial review application over harbour regeneration planning permission fails

A harbour trust's second effort to stop a development has failed after the High Court dismissed its application for judicial review on all grounds.

The proposed development will see Bembridge Investments Limited build thirteen houses and improved harbour facilities on three closely connected sites in Bembridge Harbour on the Isle of Wight.

The council granted permission to build the development in March 2021, almost seven years after the developers had first submitted their application.

The area features a number of sites of national and international conservation importance, and part of the work for the development will be carried out within this designated land.

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A screening of opinion was made in August 2014 following the initial application, which concluded that an environmental statement was not required.

The RSPB, CPRE, the National Trust and Hampshire and Isle of Wight Wildlife Trust maintained objections to the development. All except the CPRE objected on the grounds that an appropriate assessment pursuant to the Conservation of Habitats and Species Regulations 2010 was required.

A second screening of opinion was carried out around a year later, which came to the same conclusions.

The application eventually came back before the council's Planning Committee in December 2017, and the committee resolved to grant permission subject to a section 106 agreement being signed.

The section 106 agreement was agreed on 29 March 2021, and permission for the development was granted the next day.

In Bembridge Harbour Trust, R (On the Application Of) v Bembridge Investments Ltd [2021] EWHC 2605, Mrs Justice Lang heard arguments which claimed changes to the plans should have been fully considered before permission was granted, alongside claims that the respondent had failed to properly follow the Habitats Regulations and National Planning Policy Framework (NPPF).

In the claimant’s first ground, it submitted that by the date of the decision to grant planning permission in March 2021, material considerations had changed since the date when the council resolved to grant planning permission.

Applying the principles set out in R (Kides) v South Cambridgeshire DC [2002] EWCA Civ 1370, the changes were sufficiently material to require referral back to the planning committee for reconsideration, the claimants argued.

One point made by the claimant said that profits from the development would exceed the appropriate levels set by the District Valuer in 2017.

However, Judge Lang said the claim had been "effectively dismissed" by the respondents who explained the claimants had made an error in relation to the figures.

In addition, the respondents pointed out the agreement provided that if the development does generate a profit above the agreed figure, the interested party would have to pay over the excess, and it would be used for harbour improvements.

Judge Lang stated that ground 1 was not arguable and concluded that the evidence before her was not sufficient to establish an arguable case for the claims.

Judge Lang also dismissed the second ground, which stated the policy tests under paras 155 and 158-161 of the Nation Planning Policy Framework (NPPF) were unlawfully interpreted and applied.

It was claimed that the council "muddled" the sequential and exception tests in the NPPF.

The claimant submitted that both tests were wrongly considered together in that the planning officer's report took the enabling aspect of the development into account at the sequential test stage.

"This was an error and an impermissible mixing of considerations relevant to separate tests on the national planning policy," the claimant argued.

Judge Lang found that the ground was inarguable when the relevant section of the officer's report was read "fairly as a whole".

"It set out the correct policy tests. It then applied them to the specific circumstances of this development," Judge Land said.

In Judge Lang's view, the approach adopted in the report was a lawful application of the policy requirements in the NPPF.

It was alleged in the claimant’s third ground that the council failed to carry out an appropriate assessment under the Habitats Regulations before approving the plans.

Four points were made by the claimant, including a claim that insufficient plans were put in place to protect the conservation area the development was in and a complaint about the lack of consultation on an appropriate assessment made in 2020. Judge Lang found all four points to be inarguable.

In the final ground, the claimant argued that the screening opinion carried out by the council twice (in 2014 and 2016) was flawed as it failed to consider the works within the SPA, in particular, the lagoon works.

"However," Judge Lang said, "the 2016 screening opinion expressly referred to the proposed silt lagoon mitigation works and, as already mentioned under Ground 3, there is insufficient evidence to support the proposition that the more extensive lagoon works identified later give rise to a risk of likely significant effects and so ought to have been screened."

Judge Land refused permission on all four grounds.

An earlier judicial review bid by the trust was also refused in August 2021.

Adam Carey

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