If you've been following the story of small charity Buglife on this blog you will recall its legal challenge intended to prevent development on West Thurrock Marshes, a former industrial site now very rich in invertebrate biodiversity.

After a long trek through the courts it seems as though the final act may now have been played out in this drama, as Buglife retires to lick its wounds following a comprehensive rejection of its arguments by the Court of Appeal.

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The case is complex, and you can read about other aspects of it in previous posts. But the upshot is that Lord Justice Pill concluded:

None of the three points taken by [Buglife] is without force but in my judgement the planning permission should stand...

I consider that the approach of [the Local Planning Authority], and their conclusion, were justified in this case. In analysing this planning decision, consideration of the larger picture, the main issues, should not be defeated by over attention to detail, with the risk of thereby losing, in common parlance, the wood for the trees. I ... would dismiss the appeal.

It's worth noting that this was not actually a hearing about the original planning application directly. This last hearing had become, through a tortuous legal route, an appeal against the decision refusing permission for Buglife to apply for a judicial review of the original decision. So really, this looks like the end of the line. After this there are no realistic legal routes left to follow: plus of course Buglife has a £30,000 legal bill to pay off.

One thing that is in no doubt is that the plucky and defiant stand of the charity was an impressive one - stepping from legal setback to legal setback with scant comfort in the judgements against it, Buglife repeatedly 'got back on the horse' and showed a remarkable tenacity and passion for its cause. So given the small resources of this relatively new charity, and the distinct lack of any silver lining in the most recent judgement, it is probably not inappropriate to ask with the luxury of hindsight whether this £30,000 might not have been better spent. Was Buglife recklessly pursuing a lost cause; was it simply unlucky to lose what is inevitably a gamble in court; or could it be that even by losing, Buglife has achieved something positive?

Buglife made its own alternative stamps showing species threatened by the Royal Mail development

It is an underappreciated fact that almost all planning matters are matters of subjective judgement. Although it appears that a policy might forbid something, rarely is this anything near absolute - almost always there are provisos and exemptions, and beyond that, there will be the facility in the system to allow judgement on individual cases. This is, in fact, essential unless the law is to prescribe in advance the outcome of every planning decision ever made, which would obviously be impossible. Indeed this very flexibility allows extensive participation in the planning process by local residents and interested parties.

For this reason challenges to planning decisions are fraught with difficulty. It's hardly ever possible to challenge a planning decision, once it is made, simply because you don't like the outcome. One must demonstrate that the decision was made wrongly or unlawfully - and that can be a hard thing to do. The essence of Lord Justice Pill's conclusion (above) was that Buglife had not demonstrated this, despite the fact that the arguments they put forward were not without merit. It was the job of the local planning authority to weigh up the various aspects of the case before making a decision, and when they did so they lawfully had the freedom to make the decision that was made. If someone else - say Buglife - had been making the decision it could have been a different one, and they too, could have made that different decision lawfully and correctly.

So Buglife took on a big job by challenging an extant planning consent. Still, they did an excellent task of publicising the process, and one could argue that the only significant success of their campaign was a publicity-related one: the brouhaha that Buglife expertly raised apparently managed to persuade Royal Mail, the original client, that they didn't want to be associated with the scheme. Thus it remains unbuilt, although at any time somebody else could buy the site and start building, so it's only a short-term victory. Nevertheless it must have reduced the value of the development, and certainly added significant delay and risk - all elements which might discourage future developers from trying to develop in areas of high biodiversity.

But could this have been achieved without the courtroom drama? It would be easy to conclude now that the case was an expensive folly, but at the time it didn't always seem like that. There were very few indications that the case might be going in Buglife's favour, but the charity persisted nonetheless. Was it, perhaps, over-reaching itself, badly advised, or simply optimistic? Or was it that the charity judged the issue important enough to be fought to the last, regardless of the prognosis?

Certainly an important principle was at stake: did the law give adequate protection to rare species (in this case of invertebrates), or not? Given that in 2006 the law was changed to supposedly do just that, it was time that a test case was brought. However, as it turned out, the case did not really turn on this new law and so it remains in many ways untested. As Buglife describes on its website:

The judges concluded that the Corporation was entitled to rely on a letter from Natural England in which the Government conservation body withdrew their objection and mentioned that the development offered the ‘possibility of a long term nature conservation gain for the area’.

Given the existence of this advice, the importance of the 'duty of regard' which now exists in law was of less significance that it seemed in the West Thurrock case.

Brown banded carder bee - West Thurrock Marshes. © Sam Ashfield.

Nevertheless Buglife are taking the stance that this case demonstrates a weakness in the current legal provision of protection for biodiversity. "This is a disappointing decision which reveals the inadequacy of our current wildlife protection." said Matt Shardlow, Buglife Director. "The Government must act now to strengthen its biodiversity legislation and halt the worsening loss of wildlife".

It remains to be seen whether Buglife, with their brave talk, will now be in any position to take this campaign any further forward. Sadly, despite the expense, and the outstanding endeavours of the charity, the result was neither an overturn of the decision, nor a clear indication of the failings of the current legislation.

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