Court of Appeal rejects challenge to 1,700-home Nottinghamshire development

Mansfield District Council granted outline planning permission in April 2013 for a large mixed-use development on 170 hectares of land near Harlow Wood, in the Sherwood Forest region. Local resident Susan Savage applied for a judicial review of the Council's decision to grant permission, alleging that the Council had failed properly to consider and act upon advice from government environmental adviser Natural England in relation to the protection of wild birds.

Savage's challenge was rejected by a High Court judge in March and, in a decision dated 15 January, appeal judges Lord Justice Lewison, Lady Justice Eleanor King and Sir James Munby agreed that the challenge should be dismissed on all grounds.

Appeal judge Lord Justice Lewison said UK law required local authorities to consult Natural England regarding the implications of decisions affecting sites designated, or under consideration for designation, as Special Protection Areas (SPAs) for the conservation of natural habitats and wild species. In addition to this requirement, the judge said councils were required to "use all reasonable endeavours to avoid any pollution or deterioration of habitats of wild birds".

The judge noted that the Council had consulted Natural England fully regarding the application and had been advised that the Sherwood Forest region was not under consideration for designation as an SPA. However, Natural England had advised that it might be prudent to adopt a "risk-based approach", in order to be "adequately prepared" in the event that the region was considered for SPA designation in the future, triggering a legal requirement for the Council to reconsider the impact of the development.

The appeal judges rejected Savage's allegation that the Council had failed to act on Natural England's advice. Lord Justice Lewison noted that the Council had collected relevant data and proposed to mitigate any harmful effects of the proposals on nightjar and woodlark populations through a series of measures, including requiring a physical barrier, supplying a ranger service to monitor the site and imposing restrictive covenants prohibiting the keeping of cats

"I found it very difficult to understand precisely what more the Council was supposed to do, even if it had followed Natural England's advice," said the judge. "The data had been collected, mitigation measures had been proposed and, in the Council's view, they were adequate."

In adopting its mitigation protocol, the judge said the Council had "complied with its duty to 'use all reasonable measures'" to avoid the deterioration of the wild birds' habitat.

The appeal judges also disagreed with allegations that the Council's planning committee had been misled about Natural England's position; that the Council ought to have reconsidered the application between resolving to grant permission and granting permission; and that a provision of the section 106 agreement relating to the permission was unlawful.