Developer fails to convince High Court that CJEU decision was “wrong”

The High Court has dismissed a developer’s claim that a decision in the Court of Justice of the European Union (CJEU) was wrong and that its own case should therefore be referred to it for clarification.

Mr Justice Dove dismissed a case brought by Gladman Developments (Gladman Developments Ltd v Secretary of State for Housing, Communities And Local Government & Anor [2019] EWHC 2001 (Admin)) against the Secretary of State for Housing, Communities and Local Government and Medway Council, which concerned refusal of planning permission for 225 homes at Cliffe Woods.

Medway refused this on grounds of accessibility and the adverse impact of the  proposals on local character and amenity.

Gladman appealed and the inspector recommended that planning permission should be granted, but a few weeks later the CJEU handed down judgment in the case of People Over Wind and Sweetman v Coillte Teoranta [C-323/17].

Following lengthy exchanges on the implications of this decision, the secretary of state eventually refused Gladman’s application.

The CLEU decided that in undertaking a screening assessment as to whether or not appropriate assessment is required for a plan or project under the Habitats Directive it is not permissable to take account of measures intended to avoid or reduce the harmful effects of the plan or project under consideration.

Dove J noted: “This was a departure from the domestic jurisprudence on this issue which had…held that it was permissible to take account of mitigation measures.”
Gladman called for a reference to the CJEU to clarify the position as its claimed that People Over Wind was wrongly decided, that it conflicted with domestic authorities and was inadequately reasoned and explained.

The judge said: “I am wholly unpersuaded firstly, that there is any justification for the reference of the question proposed to the CJEU or, secondly, that in substance People Over Wind was wrongly decided in any event.”

He also dismissed four other grounds advanced by Gladman.