Wealden District Council v Secretary of State for Communities and Local Government and Others Natural England (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Jay
Judgment Date20 March 2017
Neutral Citation[2017] EWHC 351 (Admin)
Date20 March 2017
Docket NumberCase No: CO/3943/2016

[2017] EWHC 351 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Jay

Case No: CO/3943/2016

Between:
Wealden District Council
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Lewes District Council
(3) South Downs National Park Authority
Defendants

and

Natural England
Interested Party

John Hobson QC and Scott Lyness (instructed by Trowers & Hamlins LLP) for the Claimant

Richard Moules (instructed by Government Legal Department) for the First Defendant

James Findlay QC and Clare Parry (instructed by Sharpe Pritchard LLP) for the Second and Third Defendants

Hearing date: 8 th February 2017

Judgment Approved

See Order at bottom of judgment.

Mr Justice Jay

Introduction

1

This is a challenge by way of application for statutory review brought under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to quash part of the Lewes District Local Plan Part 1, known as the Joint Core Strategy 2010–2030 ("JCS").

2

The JCS was jointly prepared by Lewes District Council ("LDC") and South Downs National Park Authority ("SDNPA") under Part 2 of the 2004 Act. LDC is the local planning authority for the district of Lewes, save for that part – I am told 56% — which falls within the South Downs National Park (in respect of which SDNPA is, and has been since 1 st April 2011, the local planning authority). The JSC forms part of the statutory development plan for the district of Lewes, including the extent of the South Downs National Park which falls within it.

3

The Secretary of State for Communities and Local Government ("SSCLG") is involved in these proceedings as First Defendant because one of his inspectors examined the emerging JCS and gave his report to WDC and SDNPA on 22 nd March 2016. Following his recommendation that the emerging JCS was sound, the JCS was adopted by LDC on 11 th May 2016 and by SDNPA on 23 rd June 2016.

4

The geographical and environmental focus of this application is Ashdown Forest Special Area of Conservation ("the SAC") which was designated as such in 2005 pursuant to Council Directive 92/43/EEC of 21 st May 1992 on the Conservation of Natural Habitats and Wild Fauna and Flora ("the Habitats Directive"). The designation was given for a number of reasons, including the SAC's extensive areas of lowland heath, which is vulnerable to nitrogen dioxide pollution from motor vehicles. The SAC covers 2,729 hectares and lies wholly within the area of the Claimant, Wealden District Council ("WDC"). This is the local planning authority for Wealden District, save for that part of it (to the south) which falls within the South Downs National Park. Relevantly for present purposes, it should be noted that two major roads pass through or close to the SAC: the A22 runs more or less from north to south, and travels across the western side of the SAC; the A26, more to the east, runs alongside the south-eastern boundary of the SAC. It should also be noted that the north-eastern boundary of LDC is approximately 5–6 kms from the nearest point on the south-eastern boundary of the SAC. These geographical features are apparent on the colour plan which was helpfully provided to me in advance of the hearing.

5

The Interested Party, Natural England, has submitted a witness statement but has not otherwise pursued an active role in these proceedings. It provided expert advice to LDC and SDNPA during the preparation of the JCS relating in part to the issue of the potential effects of planned development on the SAC. The advice given was that the planned development would not likely have a significant impact on the SAC in consequence of increased traffic flows.

6

The principal point raised by this application, in the terms in which it was formulated by Mr John Hobson QC for WDC, is whether LDC and SDNPA acted unlawfully in concluding, on advice, that the JCS would not likely have a significant effect on the SAC in combination with the Wealden Core Strategy ("WCS"). I have emphasised the adjectival phrase "in combination with" because it lies at the heart of this application. WDC does not suggest that deleterious environmental effects are likely to have a significant effect on the SAC were they to be considered in isolation. WDC's point is that they must properly be considered in tandem with the WCS, which is another (and earlier) Joint Core Strategy prepared with SDNPA and adopted in late 2012 and early 2013. The essential contention made is that if relevant data and findings are properly amalgamated, as they should be, the effects of increased traffic flows near the SAC would not have been ignored at the first screening or scoping stage of the process.

7

The subsidiary point advanced by WDC is that SSCLG's inspector failed to have regard to its representations that were relevant to the examination of the JCS, in particular the potential effect of planned development on the SAC.

8

Before these matters can be appropriately examined, I must set out the essential factual background to this application (drawing heavily from the pleadings, the agreed chronology and the skeleton arguments) and then address the statutory and regulatory framework.

Essential Factual Background

9

In 2010 LDC issued a series of topic papers to guide development of the JCS, and later in that year produced a draft screening report of the emerging JCS for the purpose of the Habitats Directive.

10

Natural England gave advice on the draft screening report as follows:

"During the meeting with NE, it was explained that it was important to assess the impact of the Core Strategy on traffic flows on routes (including routes both within and outside the District) that lie within 200m of a protected site. NE explained that if the Core Strategy resulted in any of the following consequences on such routes then its affect [sic] on the protected sites would not be of significance:

• If the expected increase in traffic ("AADT flows") is less than 1,000 cars per day or 200 HGVs per day.

• If there is less than a 1% increase in traffic generated compared to that predicted at the end of the period that the Core Strategy plans for.

•…"

11

LDC's screening opinion concluded that it could not screen out the impacts on the SAC because, amongst other reasons, at this time LDC did not have a traffic model which would allow it to conclude whether the traffic generated by the proposed development would be significant enough to impact on the integrity of Ashdown Forest.

12

On 16 th September 2010 WDC met with representatives of Natural England to discuss the issue of nitrogen deposition in relation to the SAC. Natural England advised that, having regard to guidance in what is now Highways England's Design Manual for Roads and Bridges ("DMRB"), if estimated AADT flows arising from the WCS would be increased by 1,000 cars or more on any road in or adjacent to Ashdown Forest, that would trigger the need for an appropriate assessment under the Habitats Directive and domestic regulations.

13

In February 2011 WDC issued a report (by itself, and the relevant highways authority) which assessed the impact of the increase in traffic resulting from what was proposed in the WCS on the SAC. The WCS is not part of this application for statutory review, but it seems clear that WDC adopted the DMRB methodology and Natural England's advice. It assessed how roads within 200m of the SAC would be affected by development anticipated by the proposed WCS including committed developments. Additional AADT flows were all below the 1,000 car threshold such that a detailed assessment was not required, albeit in the case of a section of the A26 within 200m of the SAC, there was a figure of 950 cars. This is the A26 Duddleswell Road to Crowborough link which passes along the south-eastern boundary of the SAC.

14

In August 2011 WDC published its final submission WCS and associated Habitats Regulations Assessment (" HRA"). The HRA identified the A26 as the "main road corridor of interest", and stated that towards the centre of the SAC [I interpolate, more than 200m away from the A26] the nitrogen deposition load "is significantly exceeded beyond the ability of habitats to withstand deleterious effects". However, purportedly applying DMRB guidance:

"… maximum increases in traffic would arise on the A26 connecting Uckfield and Crowborough … with an increase of 950 vehicles per day … [below] the traffic criterion under the DMRB guidance … the impact of the [WCS] is therefore considered neutral and no further assessment is required.

Since the [WCS] has been found to be neutral in relation to air quality on roads local to European sites, as defined by the DMRB guidance, there can be no residual impact. Further consideration of in combination effects is not required."

15

Meanwhile, in September 2011 an emerging JCS was published jointly by LDC and SDNPA and consulted on between then and November. At that time LDC was proposing to provide 4,150 additional homes in the plan period. It should be noted that the vast majority of these were to be focussed in the urban areas of LDC (lying to the centre and south) rather than in the north- east (i.e. the area closest to the SAC). The village of Newick, which lies on the A272 at the north-eastern section of LDC, was being proposed to accommodate 120–174 dwellings. It should be observed at this stage that any increase in traffic flows on the A26 would not just result from development in Newick.

16

Between 17 th January and 2 nd February 2012 examination hearings took place into the WCS. At these hearings WDC stated that it was unable to model what was coming out of other Core Strategies or similar local plans as other authorities were not at the level of detail or stage as WDC's.

17

On 30 th May 2012 a...

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