Air quality, habitats and alternative sites
The Court of Appeal has issued a ruling in an air quality and habitats challenge relating to Ashdown Forest. James Maurici QC explains the outcome.
The Court of Appeal (Lindblom and McFarlane LLJ) has dismissed appeals brought by the Secretary of State for Communities & Local Government and Knight Developments Ltd against the judgment of Lang J. in Wealden DC v SSCLG & another [2016] EWHC 247 (Admin).
Lang J. had quashed a planning permission granted on appeal by an Inspector appointed by the Secretary of State. The appeal related to 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 appeals raised two main issues:
(1) 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”)?
(2) Did the inspector 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”)?
On the habitats issues the Court identified four sub-issues:
“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)?”
In Secretary of State for Communities and Local Government & Anor v Wealden District Council [2017] EWCA Civ 39 the Court of Appeal upheld the judgment of Lang J. on these issues.
On AONB issues the Court of Appeal overturned Lang J’s decision finding that the Inspector had not erred on these issues. The Court ruled that para. 116 of the NPPF did not oblige an inspector to deal in his decision letter with every potential site for housing in the district, one by one. It was noted that as regards the second bullet point in para. 116 which says consideration should be given to “the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way”:
“The second bullet point does not refer specifically to alternative sites. It refers to the “cost” and “scope” for development “elsewhere outside the designated area”, and to the possibility of meeting of the need for the development “in some other way”. In many cases, this will involve the consideration of alternative sites. But the policy does not prescribe for the decision-maker how alternative sites are to be assessed in any particular case. It does not say that this exercise must relate to the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. This will always depend on the circumstances of the case in hand. The third bullet point requires the decision-maker to consider potential harm in the three respects referred to – again, always a matter of planning judgment”.
James Maurici QC is a barrister at Landmark Chambers. He appeared for Knight Developments Ltd, the Second Appellant, instructed by Richard Max & Co.
Rhodri Price Lewis QC and Scott Lyness - also of Landmark Chambers - appeared for the Respondent.