Town and country planning – Planning permission – Conservation area – Claimant applying to quash a decision of first defendant allowing appeal against refusal of planning permission – Whether inspector wrongly concluding that proposed development accorded with development plan and NPPF – Application granted
Outline planning permission was granted to the second defendant developer for the construction of 103 dwellings (including 42 affordable dwellings), provision of 10 ha of land for a SANG (suitable alternative natural green space) and multi-functional public open space with associated car parks and accesses, footpaths, play space, sustainable urban drainage systems, access via a new junction, landscaping (including tree planting and enhancement to wildlife habitats) and footpaths, at Steel Cross, north of Crowborough, East Sussex.
The claimant local authority subsequently refused planning permission on the basis, among other things, that the proposal represented unacceptable and unjustified development in open countryside, within an Area of Outstanding Natural Beauty (AONB) and outside the development boundary. Such development was contrary to the local plan and provisions of the National Planning Policy Framework (NPPF).
An inspector appointed by the first defendant secretary of state allowed the second defendant’s appeal against the refusal of planning permission. He concluded that the scheme would provide housing and economic benefits and the environmental effects would be neutral overall, amount to sustainable development as defined by the NPPF (a material consideration upon which he placed considerable weight) and accord with the development plan as a whole and the NPPF.
The claimants applied under section 28 of the Town and Country Planning Act 1990 to quash the inspector’s decision. They contended, among other things, that he had (i) erred in law when concluding that the proposals would have no significant effect on a Special Area of Conservation (SAC), pursuant to section 61 of the Habitats Regulations 2010, in particular in finding that contributions to the strategic access management and monitoring strategy (SAMMS) would mitigate any such effect or by failing to have regard to evidence that proposed contributions to heathland management could not effectively mitigate any such effect; and (ii) erred in his consideration of NPPF 116 when concluding that there were no alternative sites to meet the need for the proposed development.
Held: The application was granted.
(1) The inspector’s decision under regulation 61 that the proposed development was not likely to have significant effects on the SAC was unlawful by reason of his flawed decision-making process. He could only properly exclude the risk of significant effects, in reliance upon mitigating proposals, if he was sure, on the basis of objective information, that there would be no significant harmful effects. A precautionary approach ought to have been adopted. Here the inspector mistakenly believed that heathland management to reduce nitrogen deposition was part of the SAMMS, and had been agreed with the conservators. In fact there was no agreed heathland management scheme in existence, which was a highly relevant consideration which he failed to consider. Moreover, he had failed to consider and take into account the evidence of the claimants, raising concerns about the efficacy of the proposed mitigation. The inspector thus failed to meet the requirements of lawful decision-making: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 PLR 76; [2003] 2 AC 295 and Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 applied.
The evidence was too uncertain for the court to exercise its discretion not to quash the decision on the basis that an inspector properly directing himself on the evidence before him would have reached the same decision. Bearing in mind the importance of the SAC and the legal requirements of the Habitats Directive 92/43/EEC and the 2010 Regulations, including application of the precautionary principle, it would be unsafe to do so. The court was ill-equipped to reach conclusions on the technical evidence as it had not had the opportunity to conduct a detailed examination, including hearing from expert witnesses, in an appeal on a point of law only. It would be foolhardy for the court to conclude that the inspector’s conclusions were correct, on the basis of the limited evidence before it. Accordingly, the decision ought to be quashed.
(2) On the issue of need for housing development under bullet point one of NPPF 116, the claimants were in effect challenging the inspector’s findings on the evidence, and his planning judgments, which was impermissible. There was sufficient evidence before the inspector to support his findings and he was not required to specify objectively assessed housing need, or affordable housing need, in precise figures, either to fulfil his task under NPPF 116 or to meet the standard of reasons required, applying the principles in South Bucks District Council v Porter (No 2) [2004] 4 PLR 50; [2004] 1 WLR 1953. For the purposes of NPPF 116, it was sufficient for him to assess and record the need in the broad terms in which he did.
However, under bullet two, the question was whether the proposed development could be located at an alternative site outside the AONB. Its purpose was to ascertain whether an alternative site might be available, so as to avoid development in the AONB. It required other available sites to be assessed, on their merits, as possible alternative locations for the proposed development. NPPF 116 was not a plan-making provision, like NPPF 47, which required housing needs and supply to be assessed generally across an area. It was clear from its wording that NPPF 116 was intended to apply in the consideration and determination of applications for planning permission for specific developments, as in this case. Once the Inspector had investigated and assessed the matters identified in the three bullet points, as well as any other relevant considerations, he had to decide whether exceptional circumstances and the public interest meant that the presumption against major development in an AONB was rebutted. Unfortunately the inspector had not adequately investigated or assessed whether the development could be located at an alternative site and so he did not properly apply NPPF 116, nor did he take into account all relevant considerations, as required in public law decision- making. That was a significant failure, given the high level of protection afforded to AONBs under national planning policy. Accordingly, it would not be appropriate for the court to exercise its discretion not to quash the decision on that ground. On the evidence, it was possible that a suitable alternative site might be identified, which could alter the overall judgment made on whether the presumption against development ought properly to be rebutted.
Rhodri Price Lewis QC and Scott Lyness (instructed by Sharpe Pritchard LLP) appeared for the claimant; Richard Kimblin (instructed by the Government Legal Department) appeared for the first defendant; James Maurici QC (instructed by Richard Max & Co) appeared for the second defendant.
Eileen O’Grady, barrister
