Planning appeal – Site near to special protection area — Regulation 48 of Conservation (Natural Habitat, &c) Regulations 1994 – Provision of suitable alternative natural green spaces – Refusal of planning permission for residential development – Whether inspector erring in approach to mitigation of effects by SANGs provision – Claim dismissed
The claimant applied to the second defendant council for planning permission to build two blocks of seven two-bedroom flats with associated parking and access. The application site was close to two areas of land that formed part of a special protection area (SPA), under Article 4 of the Birds Directive 79/407/EEC, owing to their importance as a bird habitat. The second defendants refused permission and the claimant appealed to the first defendant.
By regulation 48 of the Conservation (Natural Habitat, &c) Regulations 1994, implementing Article 6(2) and (3) of the Habitats Directive 92/43/EEC, a planning authority faced with an application for a plan or project that was likely to have a significant effect upon an SPA, either alone or in combination with other plans or projects, was obliged to consult with the appropriate nature conservation body to assess the implications of the project for the SPA. They should give consent only if the project would not adversely affect the integrity of the SPA. The inspector noted the advice of Natural England, the appropriate nature conservation body. It advised that: (i) having a housing development in the vicinity of an SPA was likely to have a detrimental effect owing to the increased number of people visiting and walking dogs in the area; and (ii) although these were plans to mitigate the effects of such development by providing suitable alternative natural green spaces (SANGs) in conjunction with local authorities, applications should in the meantime include mitigation measures in respect of all potentially adverse effects. The inspector found that the claimant’s proposals were likely to have a significant effect upon the SPA in conjunction with other projects and it could not be ascertained, in the absence of any provision of or contribution to SANGs, that the project, as submitted, would not adversely affect the integrity of the SPA. He accordingly dismissed the appeal.
The claimant challenged that decision under section 288 of the Town and Country Planning Act 1990. It contended that the inspector had misdirected himself and had erred in, inter alia, attaching too little weight to SANGs proposed by local authorities in the area.
Held: The claim was dismissed.
The inspector had not misdirected himself. He had correctly summarised the advice of Natural England as indicating that if appropriate SANGs provisions were incorporated into the proposal, it would be possible to ascertain that the SPA would not be adversely affected and no further assessment would be required before the proposal could proceed. In the absence of such provisions, the inspector had been entitled to give little weight to local authority SANGs provisions in nearby areas. Of the sites relied upon by the claimant, one had been dropped from the relevant authority’s list of sites for further consideration and the others were more distant from the application site. Accordingly, the inspector’s reasons for rejecting those examples was readily comprehensible. He had also been entitled to dismiss long-term strategic plans for the improvement of habitats in the SPA where these had barely begun to be implemented and there was no evidence to show that habitat improvements and new recreational habits would have been established by the time the claimant completed its development.
Rupert Warren (instructed by Pitmans, of Reading) appeared for the claimant; James Maurici (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
