In Secretary of State for Communities and Local Government & Anor v Wealden District Council [2017] EWCA Civ 39, the Court of Appeal has dismissed the appeal brought against the High Court’s decision in 2016.
This case involved two appeals concerning a planning application for a development of housing on a site near Crowborough in East Sussex on an AONB site near Ashdown Forest originally refused by Wealden District Council in February 2014. The developer appealed successfully to the secretary of state but the council then challenged that decision in the high court where the permission was quashed. The secretary of state and the developer were granted permission to the Court of Appeal. The Court of Appeal dismissed the two appeals calling for the planning inspector’s decision to stand, and refused permission to appeal to the Supreme Court.
The Court of Appeal considered two issues: (1) Did the inspector fall into error in considering the possible effects of the proposed development on the Ashdown Forest SAC and the Ashdown Forest SPA? And (2) did he misdirect himself when considering alternative sites for the development in the light of government policy for “major development in an AONB” in paragraph 116 of the NPPF, by wrongly confining the exercise to Crowborough rather than considering the availability of sites throughout the district?
On the first question, the court had four issues to decide.
- Did he adopt too strict an approach in concluding that there was no need for an “appropriate assessment” the Habitats Directive/Regulations?
- Was he wrong, as the judge concluded he was, to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy?
- Did he fail to take into account evidence given for the council on the efficacy of heathland management?
- Fourthly, was the judge wrong not to exercise her discretion to withhold relief, and, in particular, did she fail to give appropriate weight to the views of Natural England as “relevant nature conservation body”?
The Court of Appeal upheld the judgement of the High Court on the first issue. It found that the inspector had adopted too strict an approach in concluding that there was no need for an “appropriate assessment” under the Habitats Directive and the Habitats regulations.
On AONB issues, the Court of Appeal overturned the high court’s decision finding that the inspector had not erred on these issues. The court ruled that paragraph 116 of the NPPF did not oblige an inspector to deal in his decision letter with every potential site for housing in the district, one by one. It was noted that as regards the second bullet point in paragraph 116 which says consideration should be given to “the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way”, the policy does not prescribe for the decision-maker how alternative sites are to be assessed in any particular case. It does not say that this exercise must relate to the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. This will always depend on the circumstances of the case in hand.
Martha Grekos is partner and head of planning, Howard Kennedy
