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Ashdown Forest Economic Development Llp v Secretary of State for Communities and Local Government and Others

Judgment Cited authorities 34 Cited in 18 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeMr Justice Sales
Judgment Date21 February 2014
Neutral Citation[2014] EWHC 406 (Admin)
Date21 February 2014
Docket NumberCase No: CO/3796/2013
CourtQueen's Bench Division (Administrative Court)
Categories
Between:
Ashdown Forest Economic Development Llp
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Wealden District Council
(3) South Downs National Park Authority
Defendants

[2014] EWHC 406 (Admin)

Before:

The Honourable Mr Justice Sales

Case No: CO/3796/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

David Elvin QC & Charles Banner (instructed by King Wood Mallesons LLP) for the Claimant

Richard Kimblin (instructed by the Treasury Solicitor) for the First Defendant

James Pereira & David Graham (instructed by Wealden District Council) for the Second and Third Defendants

Mr Justice Sales

Introduction

1

This is a claim under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to quash, in whole or in part, the Wealden District Core Strategy Local Plan ("the Core Strategy"). The Core Strategy forms part of the statutory development plan for the administrative areas of both the Second Defendant, Wealden District Council ("WDC"), and the Third Defendant, South Downs National Park Authority ("SDNPA"). WDC had the main role in preparing the Core Strategy for adoption. It was adopted by WDC and SDNPA jointly on 19 February 2013.

2

The Claimant is an umbrella organisation representing the interests of a number of major landowners in the area covered by the Core Strategy, whose property interests are affected by the Core Strategy. In particular, the Core Strategy places limits on building development in the general area covered by it and also specific restrictions in relation to building development in an area within 7 km of the boundary of Ashdown Forest, which is a protected site within the area covered by the Core Strategy. The landowners would like greater opportunities to develop their land by building on it than the Core Strategy allows for.

3

Ashdown Forest is designated as a Special Area of Conservation under the Habitats Directive (Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora) and the Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"). It is also designated as a Special Protection Area under the Birds Directive ( Directive 2009/147/EC on the conservation of wild birds) and the Habitats Regulations.

4

The Core Strategy was adopted by WDC and SDNPA after an extensive iterative process of consultation and refinement, including an examination in public before an Inspector (Mr Moore, appointed by the Secretary of State, the First Defendant), at hearings in January and February 2012 and on 6 September 2012. The Inspector's Report on the Core Strategy pursuant to section 20 of the 2004 Act was issued on 30 October 2012. It made certain recommendations, subject to compliance with which the Inspector found the Core Strategy to be "sound" and cleared it for adoption by WDC and SDNPA.

5

In order to protect Ashdown Forest to the level required by the Habitats Directive, the Birds Directive and the Habitats Regulations, the draft Core Strategy submitted for examination by the Inspector WDC included an overall housing requirement for the area covered by the Core Strategy of 9,600 in the period to 2030 and proposed measures of particular control in relation to new development close to the Forest in the form of a prohibition on new development within 400m of the edge of the Forest (to limit predation by domestic cats and so forth) and a requirement that for new development within 7 km of the Forest suitable alternative natural green space ("SANG") should be provided. The purpose of the proposed SANG requirement was to limit housing development in proximity to the Forest, with a view to limiting recreational visits to the Forest to a level which would not place excessive strain on the bird wildlife in the Forest.

6

The overall housing requirement figure of 9,600 in the draft Core Strategy was a considerable reduction below the then current figure of 11,000 contained in another planning document, the South East Plan. The South East Plan was the regional spatial strategy for the South East which had been promulgated under the 2004 Act prior to the removal of the layer of regional strategy planning by amendment of that Act by the Coalition Government. The Government announced in July 2010 that regional strategy plans were to be revoked. However, the South East Plan was only formally revoked with effect from March 2013, after adoption of the Core Strategy in issue in these proceedings.

7

Although the Inspector found that the figure of 11,000 for the overall new housing requirement in the South East Plan remained the appropriate figure for new housing needs in the area, he considered that the lower figure proposed by WDC for inclusion in the Core Strategy was justified by reason of environmental constraints in relation to the need to protect Ashdown Forest from the detrimental effects of traffic pollution associated with increased density of population in the area. For separate reasons which are not the subject of challenge he reduced WDC's proposed figure of 9,600 to 9,440. The Inspector also considered that the 7 km SANG zone and 400m development exclusion zone were appropriate, and required that they be promoted from discussion in explanatory text in the draft Core Strategy to be incorporated into a formal policy statement in the approved version of the Strategy, in policy WCS12 (Biodiversity).

8

The Claimant challenges the lawfulness of the adoption of the Core Strategy on four grounds:

i) Ground One: In relation to the statement of overall housing requirement in the Core Strategy as adopted, the Inspector reached an irrational and illogical conclusion, contrary to the approach he should have adopted in compliance with national policy guidance as to his role in examining a development plan, that the lower figure of 9,440 was justified. He erred in accepting WDC's contention that a risk of environmental damage to Ashdown Forest arising from the impact of nitrogen and nitrogen oxide pollution from traffic ("nitrogen deposition") associated with housing development at a higher figure meant that the objectively assessed need for 11,000 new homes in the relevant period could not be met. He should have found that WDC had not carried out sufficient investigations to determine whether in fact the higher, objectively assessed housing requirement figure could have been accommodated without undue risk of environmental damage to the Forest. He should have required WDC to undertake further work to see whether an overall new housing requirement of up to 11,000 could be accommodated and included in the Core Strategy, and until that work was done should have treated the draft Core Strategy as unsound and not properly capable of adoption. The unlawfulness in the approach and conclusion of the Inspector prevented the adoption of the Core Strategy by WDC and SDNPA from being lawful. Mr Kimblin appeared for the Secretary of State to defend the Inspector against this allegation of unlawfulness in his approach and Mr Pereira, for WDC and SDNPA, adopted his submissions in relation to this Ground;

ii) Ground Two: Again in relation to the statement of overall housing requirement in the Core Strategy, the steps taken by WDC to investigate whether the figure of 9,440 was justified were inadequate to comply with its obligations under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment ("the SEA Directive") and the domestic regulations which implement that Directive, the Environmental Assessment of Plans and Programmes Regulations 2004 ("the Environmental Assessment Regulations"), which required it to examine reasonable alternatives to the plan which it chose to adopt and to explain its choice;

iii) Ground Three: Again in relation to the statement of overall housing requirement in the Core Strategy, WDC failed to carry out an appropriate assessment as required by regulation 61(1)(a) of the Habitats Regulations and the Habitats Directive regarding the impact on Ashdown Forest of nitrogen deposition; and

iv) Ground Four: In relation to the 7 km SANG zone, the adoption of Policy WCS12 was contrary to the SEA Directive and the Environmental Assessment Regulations, in that there was no assessment of the relative environmental impacts of a different radius or of alternative means of mitigating the additional recreational pressure on Ashdown Forest arising from new development.

9

Mr Pereira presented the submissions for WDC and SDNPA in relation to Grounds Two, Three and Four. The Secretary of State made no submissions in relation to those Grounds, since they were not directed against the Inspector (even though, presumably, in theory they might have been, as further grounds on which it might have been said that the Inspector ought to have found that the Core Strategy had not been lawfully prepared and was unsound).

Legal Framework

(i) The 2004 Act

10

The Core Strategy qualifies as a "development plan document" for the purposes of the 2004 Act. Once such a core strategy is adopted by a local planning authority, it becomes part of the statutory development plan of that authority. This has the result that planning applications must be determined in accordance with the core strategy, as in relation to other parts of the statutory development plan, unless material considerations indicate otherwise: section 38(6) of the 2004 Act.

11

A core strategy also sets the framework for drawing up other, lower level and more detailed parts of the statutory development plan of a local planning...

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