Wealden District Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 17 February 2016 |
| Neutral Citation | [2016] EWHC 247 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4024/2015 |
| Date | 17 February 2016 |
[2016] EWHC 247 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/4024/2015
Rhodri Price Lewis QC and Scott Lyness (instructed by Sharpe Pritchard LLP) for the Claimant
Richard Kimblin (instructed by The Government Legal Department) for the First Defendant
James Maurici QC (instructed by Richard Max & Co) for the Second Defendant
Hearing dates: 26, 27 & 28 January 2016
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant ("the Council") applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash a decision of the First Defendant, made by his appointed Inspector on 16 July 2015, allowing the Second Defendant's appeal against the refusal of planning permission for housing and associated development at Steel Cross, north of Crowborough, East Sussex ("the Site").
Outline planning permission was granted to the Second Defendant ("Knight") 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.
Refusal of planning permission by the Council
The Council, which is the local planning authority, refused planning permission on 13 February 2014. Among other reasons, it concluded that the proposal represented an unacceptable and unjustified form of development in open countryside, within the High Weald Area of Outstanding Natural Beauty ("AONB") and outside the development boundary for Crowborough. Such development was contrary to the Local Plan and provisions of the National Planning Policy Framework ("NPPF").
The Claimant also concluded that the proposed development, both alone and in-combination with other plans and proposals, would have an adverse effect on the integrity of protected areas in Ashdown Forest, the edge of which is about 2.4 km from the site. The Claimant's decision stated:
"The application site lies within 7km of the Ashdown Forest Special Protection Area ("SPA"), Special Area of Conservation ("SAC") and Site of Special Scientific Interest ("SSSI"). …Ashdown Forest forms part of a complex of heathlands in southern England that support breeding bird populations of European importance. It was classified in 1996 under EU Directive 79/409, known as the Birds Directive. As such, the SPA is a European site to which Part IV of the Conservation (Natural Habitats etc) Regulations 1994 ("the Regulations") apply. The designation is primarily concerned with the protection of two rare and vulnerable bird species, the Nightjar and Dartford Warbler; these are identified in Annex 1 of the Directive.
The SAC has two qualifying features: Northern Atlantic wet heaths with Erica tetralix and European dry heaths (this is considered to be one of the best areas in the United Kingdom). Ashdown Forest contains one of the largest single continuous blocks of lowland heath in south-east England, with both 4030 European dry heaths and, in a larger proportion, wet heath.…
The development proposal, both alone and in-combination with other plans and proposals, would have an adverse effect on the integrity of the SPA and SSSI, including impact through increased recreational use of the Ashdown Forest and the intensification of nitrogen deposition in the protected area by additional traffic generated. There are no suitable proposals to mitigate this adverse effect…The proposal would also conflict with policy WCDS12 of Wealden District Council's Core Strategy, as the development has not demonstrated adequate mitigation for the cumulative effects caused to the biodiversity interests.
As a result, there are concerns with regard to the adverse effect on the integrity of the SPA, including the deterioration of the quality of the habitats and an increased disturbance to birds.
The proposed development would therefore be contrary to saved policies EN7 and EN15(1) of the adopted Wealden Local Plan 1998, coupled with advice within National Planning Policy Statement 2012 paragraphs 109, 117, 118 and 119…Circular 06/05 "Biodiversity and Geological Conservation – Statutory Obligations and their Impact within the Planning System" and "Planning for Biodiversity and Geological Conservation: A Guide to Good Practice (March 2006) and policies WCS12 and WCS14 of the Wealden Core Strategy 2013."
The Inspector's decision
Knight appealed under section 78 TCPA 1990. The appointed Inspector (Mr David Nicholson) held an Inquiry and conducted site visits. The Inspector identified the main issues in the appeal, in paragraph 9 of the Decision Letter ["DL 9"], as the effect of the proposals on:
i) The character and appearance of the area with reference to the adopted development boundary of Crowborough and the High Weald AONB;
ii) The biodiversity of Ashdown Forest, with particular regard to pressures from recreational use and nitrogen deposits;
iii) Sustainability, including accessibility and the availability of non-car modes of transport;
iv) Whether any benefits would outweigh any harm which might be caused;
v) Whether the proposal amounted to sustainable development.
In summary, the Inspector concluded:
i) The proposal would only harm the character and appearance of the central part of the site; the remainder would be enhanced by the proposed SANG. For these reasons he gave limited weight to the conflict with Core Strategy landscape policies [DL 26, 27].
ii) The location outside the development boundary of Crowborough conflicted with Local Plan policies on the countryside, but this should be given only moderate weight in the overall balance, and should not outweigh the need for more housing [DL 32, 33].
iii) The Site did not exhibit the particular characteristics of the AONB which had given rise to its designation and so the proposal would not harm important characteristics of the AONB. The proposal would have a neutral effect on the contribution made to the landscape and scenic beauty of the AONB, and so would comply with Core Strategy and Local Plan policies and NPPF 115 [DL 39, 40].
iv) Ashdown Forest SAC and SPA were European sites covered by the Conservation of Habitats and Species Regulations (Amendment) 2010 ("the Habitats Regulations") [DL 42].
v) Recreational use of Ashdown Forest by residents could have an adverse effect on habitat and disturb the birds, and ought to be mitigated, in accordance with the Local Plan and Core Strategy policies [DL 44 – 47]. The on-site SANG would be used by residents instead, to some extent, thus fulfilling the objective of Policy WCS12 [DL 50]. The Strategic Access Management and Monitoring Strategy ("SAMMS") projects would address problems arising from recreational use and the financial contributions to SAMMS from Knight Developments would offset any likely significant adverse effects [DL 53].
vi) Nitrogen emissions from vehicle exhausts could have an adverse effect on the protected heaths in Ashdown Forest [DL 55]. The Core Strategy Inspector found that further development should be restricted on a precautionary basis at least until further reviewed [DL 58]. In light of the conclusions in the Core Strategy report, further housing development which was likely to increase traffic flows beyond that anticipated in the Core Strategy ought not to be automatically screened out under the Habitats Regulations [DL 62].
vii) The impact of the proposal on its own would be insignificant, but adopting the precautionary approach required under the Habitats Regulations, there was a low risk of a significant in-combination effect [DL 67]. However, the contributions by Knight towards SAMMS for habitat management would outweigh the harm, if any, from nitrogen deposits [DL 71]. With this mitigation, the proposal would not be likely to have a significant effect on the heaths and so no "appropriate assessment" under the Habitats Regulations was required [DL 72].
viii) Overall the Site was reasonably well located with regard to accessibility [DL 78].
ix) The scheme would provide housing and economic benefits and the environmental effects would be neutral overall. The scheme would amount to sustainable development as defined by the NPPF – a material consideration upon which he placed considerable weight [DL 85 – 87].
x) Applying NPPF 116, there were "exceptional circumstances" "in the public interest" why planning permission should be granted for a major development within an AONB. There was "a lack of harm" to the landscape and scenic beauty. The alternative sites proposed by the Council were not realisable alternatives. But even if there were appropriate alternative sites within Crowborough or the wider district, there would still be insufficient housing land overall to meet the full objectively assessed need for housing ("OAN"), and the need for affordable housing. Some development within the AONB had already been granted permission [DL 88 – 91].
xi) The proposal would accord with the development plan as a whole and the NPPF [DL 107].
Grounds of challenge
By the date of the hearing, the...
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