Town and country planning – Planning permission – Residential development – Proposal for housing development in area of outstanding natural beauty close to designated special area of conservation and special protection area – Whether first appellant’s planning inspector entitled to find that development would have no significant effect on SAC and SPA for purposes of regulation 61 of Conservation of Habitats and Species Regulations 2010 – Whether erring in approach to availability of alternative sites for purposes of para 116 of National Planning Policy Framework – Appeal allowed
The second appellant applied for planning permission to build 103 dwellings, including 42 units of affordable housing, on land at Steel Cross, to the north of Crowborough, East Sussex. The proposal included the provision of 10ha of “suitable alternative natural green space (SANG)” and public open space. The proposed development site lay within the High Weald Area of Outstanding Natural Beauty (AONB), and about 2.4km from the edge of the Ashdown Forest Special Area of Conservation (SAC) and Special Protection Area (SPA). The respondent council refused the application but planning permission was granted on an appeal to the first appellant’s planning inspector.
The respondents brought proceedings under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. They contended that the inspector had: (i) erred in law in concluding that the proposals would have no significant effect on the SAC and SPA and that there was therefore no need for an “appropriate assessment” under article 6(3) of Council Directive 92/43/EEC (the Habitats Directive) and regulation 61 of the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations); (ii) wrongly found, in that regard, that the effects of the development, including increased nitrogen deposits from vehicle exhausts, would be mitigated by financial contributions to a strategic access management and monitoring strategy (SAMMS), when there was in fact no agreed heathland management scheme in existence and such a scheme was in any event incapable of achieving the necessary mitigation; and (iii) misinterpreted and misapplied the policy in para 116 of the National Planning Policy Framework (NPPF) when considering the availability of alternative sites outside the AONB, by confining the exercise to Crowborough rather than considering the availability of sites throughout the district.
In the court below, the judge accepted those contentions and quashed the inspector’s decision: see [2016] EWHC 247 (Admin); [2016] PLSCS 51. The appellants appealed.
Held: The appeal was dismissed.
(1) The inspector had not erred in his approach to regulation 61 of the Habitats Regulations. He had properly followed the “precautionary” approach advocated by the authorities when considering whether an appropriate assessment was necessary and had not adopted too strict an approach: Sweetman v An Bord Pleanala [2014] PTSR 1092, Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2005] Env LR 14, Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174; [2015] PLSCS 75 and R (on the application of Champion) v North Norfolk District Council [2015] UKSC 52; [2015] PLSCS 227 applied.
Although the threshold for an appropriate assessment was very low, the inspector had to exercise his own judgment in deciding whether the low threshold for likely significant effects was surmounted on the facts of the case. He had concluded that it was not, but only on the basis that the mitigation measures to which he referred were taken into account. It was implicit in his conclusion that, with mitigation, there would be no likely significant effects, and that an “appropriate assessment” was therefore not required, that there would or at least could be such effects in the absence of mitigation. The mitigation, including heathland management, was necessary to his conclusion on the issue of appropriate assessment. That was a matter of judgment for the inspector, as the “competent authority”.
(2) However, there were shortcomings in the inspector’s conclusions on heathland management, which were sufficient to invalidate his decision on the appropriate assessment issue. That decision depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation was essential to the precautionary approach. Accordingly, if there was any real doubt about the requisite heathland management coming forward, his conclusion that an appropriate assessment was not required would, to that extent, be undermined. It was necessary for the inspector to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. He had not done that.
Relevant SAMMS strategies which were in place, or being prepared, were designed to address the potential effects of recreational use of Ashdown Forest and there was no guarantee that any of the financial contributions which the second defendant had committed to making would in fact be devoted to mitigating the effects of nitrogen deposition associated with the proposed development. The second defendant’s commitment to make the specified contributions was a unilateral undertaking, which did not secure the delivery of heathland management through those contributions or stipulate any particular heathland management project that might be funded by them. The inspector had not explained how he thought the financial contributions were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition.
(3) Further, it was surprising that the inspector said nothing about the respondents’ evidence and submissions calling into question the effectiveness, deliverability and consequences of heathland management. That evidence and those submissions went to the possibility of mitigating the effects of nitrogen deposition, and so to the need for appropriate assessment. The inspector should have dealt with them explicitly. While it was open to him to conclude, as a matter of planning judgment, that heathland management, if it could be secured, would be effective in reducing or preventing the harmful effects of nitrogen deposition, that would have required a reasoned conclusion showing that he had got to grips with the respondents’ evidence and preferred that of the second defendant. That reasoned conclusion was lacking.
(4) It was not clear that, if the inspector had undertaken an appropriate assessment, he would have found no significant effect on the integrity of the SAC. The judge had therefore properly concluded that she could not exercise her discretion to withhold an order quashing the inspector’s decision.
(5) The judge had, however, been wrong to find that the inspector had erred his approach to para 116 of the NPPF and the availability of alternative sites. The policy in para 116 required the decision-maker to consider whether there were “exceptional circumstances” justifying the granting of planning permission for the development in question, and whether granting permission would be “in the public interest”. So far as that consideration concerned the availability of alternative sites, the policy did not prescribe how alternative sites were to be assessed in any particular case. It did not say that the exercise had to relate to the whole of a local planning authority’s administrative area, or to a larger or smaller area. That would depend on the circumstances of the particular case. The policy allowed the inspector a broad discretion in making each of the planning judgments required, in the particular context in which those judgments had to be made. The inspector had made each of those planning judgments lawfully, on the evidence before him.
The relevant need in the instant case was a general need for housing and affordable housing but, because most of the district was within the AONB, there were few alternative sites suitable for housing development that were not equally constrained. The inspector’s finding that there was a lack of housing land to meet the full objectively assessed housing need was not limited to Crowborough but was based on a wider area. The inspector had not been satisfied that such other sites as were available for housing development in the district would be sufficient to meet the need, or that the shortfall would be made up by development elsewhere. That was a matter of planning judgment for him, which had properly informed his broader conclusion that there “exceptional circumstances” justifying approval of the development in the AONB.
Richard Kimblin (instructed by the Government Legal Department) appeared for the first appellant; James Maurici QC (instructed by Richard Max & Co) appeared for the second appellant; Rhodri Price Lewis QC and Scott Lyness (instructed by Sharpe Pritchard LLP) appeared for the respondent.
Sally Dobson, barrister
