Secretary of State for Communities and Local Government and Another v Wealden District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice McFarlane |
| Judgment Date | 31 January 2017 |
| Neutral Citation | [2017] EWCA Civ 39 |
| Docket Number | Case Nos: C1/2016/0986 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 January 2017 |
[2017] EWCA Civ 39
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
and
Lord Justice Lindblom
Case Nos: C1/2016/0986
C1/2016/1016
Mr Richard Kimblin Q.C. (instructed by the Government Legal Department) for the First Appellant
Mr James Maurici Q.C. (instructed by Richard Max & Co. Solicitors) for the Second Appellant
Mr Rhodri Price Lewis Q.C. and Mr Scott Lyness (instructed by Sharpe Pritchard LLP) for the Respondent
Hearing dates: 18 and 19 October 2016
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
These two appeals concern an inspector's decision to grant planning permission for a development of housing on a site near Crowborough in East Sussex. Two distinct questions arise. Did the inspector fall into error in considering the possible effects of the proposed development on the Ashdown Forest Special Area of Conservation ("the SAC") and the Ashdown Forest Special Protection Area ("the SPA")? And did he misdirect himself when considering alternative sites for the development in the light of government policy for "major development in an Area of Outstanding Natural Beauty" in paragraph 116 of the National Planning Policy Framework ("the NPPF")? Neither question raises any novel issue of law.
The two appellants are the Secretary of State for Communities and Local Government, whose inspector, Mr David Nicholson, made the decision, and Knight Developments Ltd., the applicant for planning permission. The respondent in both appeals is Wealden District Council, the local planning authority. The proposed development was the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of "suitable alternative natural green space" ("SANG") and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is in the countryside, beside the A26 trunk road, in the High Weald Area of Outstanding Natural Beauty ("the AONB"), and about 2.4 kilometres from the edge of Ashdown Forest. The council refused planning permission on 13 February 2014. Knight Developments appealed to the Secretary of State. The inspector held an inquiry into that appeal over 11 days in March and April 2015. In a decision letter dated 16 July 2015 he allowed the appeal. The council challenged his decision by an application under section 288 of the Town and Country Planning Act 1990. The challenge succeeded before Lang J.. In an order dated 17 February 2016 she quashed the inspector's decision. I granted permission to appeal on 11 May 2016.
The issues in the appeal
On the first question, relating to the inspector's consideration of the possible effects of the development on the SPA and the SAC, we have four issues to decide. First, did he adopt too strict an approach in concluding that there was no need for an "appropriate assessment" under article 6(3) of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") and regulation 61 of the Conservation of Habitats and Species Regulations 2010 ("the Habitats regulations") (ground 2 of the Secretary of State's appeal)? Secondly, 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 ("SAMMS") (ground 3 of the Secretary of State's appeal, and ground 1 of Knight Developments')? Thirdly, did he fail to take into account evidence given for the council on the efficacy of heathland management (ground 2 of Knight Developments' appeal)? And fourthly, was the judge wrong not to exercise her discretion to withhold relief (ground 3 of Knight Developments' appeal, supported by the Secretary of State), and, in particular, did she fail to give appropriate weight to the views of Natural England as "relevant nature conservation body" (ground 1 of the Secretary of State's appeal)?
On the second question, concerning the inspector's consideration of the effect the development would have on the AONB and his approach to alternative sites, there is a single issue: whether he misinterpreted and misapplied the policy in paragraph 116 of the NPPF, wrongly confining the exercise to Crowborough rather than considering the availability of sites throughout the district (grounds 4 and 5 of the Secretary of State's appeal, and grounds 4, 5 and 6 of Knight Developments').
Possible effects on biodiversity in Ashdown Forest – the inspector's conclusions
Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The SAC, which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a "European site" under regulation 8 of the Habitats regulations. The SPA was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest ("SSSI"), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.
In its decision notice refusing planning permission the council contended that "both alone and in combination with other plans and proposals, [the proposed development] would have an adverse effect on the integrity of the SPA and SSSI, including impact through pressures for increased recreational use of the Ashdown Forest and the intensification of nitrogen deposition in the protected area by additional traffic generated". The proposal had "not demonstrated adequate mitigation for the cumulative impacts caused to the biodiversity interests".
In his decision letter the inspector said there were five "main issues" in Knight Developments' appeal. One of them was the effect of the development on "the biodiversity of the Ashdown Forest", having regard, in particular, to "recreational use" and "nitrogen (N) deposits" (paragraph 9).
There was no dispute that the proposal engaged regulation 61 of the Habitats regulations. Regulation 61 required the inspector, as the "competent authority" in this case, "before deciding to … give … permission … for … a … project which … is likely to have a significant effect on a European site … (either alone or in combination with other … projects)", to "make an appropriate assessment of the implications for that site in view of the site's conservation objectives". The inspector acknowledged that the Habitats regulations "essentially take a precautionary approach to potential effects on a site's conservation objectives" (paragraph 42 of the decision letter). He referred to regulation 61, reminding himself that "[the] Courts … have found that the threshold for requiring an appropriate assessment is very low" (paragraph 43). He mentioned the decision of the Court of Justice of the European Union in Sweetman and others v An Bord Pleanala (Galway County Council and another intervening) [2014] P.T.S.R. 1092.
He considered first the effects of "recreational use" (in paragraphs 44 to 54 of his decision letter). "SAMMS projects" had been identified, "particularly related to dogs". Mid Sussex District Council was receiving "contributions from developers" for its "SAMM Interim Mitigation Strategy" (paragraph 52). Knight Developments had "offered a contribution towards the SAMMS" with the intention of "reducing recreational and other impacts". The level of funding was yet to be determined, but the contribution "would offset any likely significant adverse effects and more than overcome any shortcoming in the SANG provision" (paragraph 53). The inspector concluded that "on balance the proposals would not result in any harm to [Ashdown Forest] from recreational uses" (paragraph 54).
The potential effects of nitrogen deposition were a separate matter. Nitrogen deposits from vehicle exhausts can harm heathland habitat through increased acid deposition and eutrophication. The inspector had to consider whether it was possible to exclude a risk of likely significant effects on the European site as a result of nitrogen deposition from vehicle exhausts on the relevant stretch of the A26 – 255 metres in length. The parties had agreed that the proposed development on its own would not be responsible for harmful effects, and that the issue for the inspector was whether it was likely to do so in combination with other development.
The expert witness who gave evidence on ecological matters for Knight Developments, Mr Adrian Meurer of Hankinson Duckett Associates, had produced a "Note on management to counter effects of nitrogen deposition on the Ashdown Forest SAC", dated 30 March 2015, in which he said that heathland management could address any risk of harm to the SAC. He relied on guidance from DEFRA in a pamphlet entitled "The Impacts of Acid and Nitrogen Deposition on Lowland Heath", which referred to the use of habitat management to maintain low nutrient levels. Some management, including the cutting of heathland vegetation and bracken, and grazing by ponies, sheep and cattle, was already taking place (paragraph 4 of the note). Given that the additional nitrogen deposition attributable to the proposed development would be "de minimis", any heathland management brought about through the appeal scheme "should not be regarded as either mitigation or compensation, but … as 'enhancement'"...
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