In Wealden District Council v Secretary of State for the Communities and Local Government [2016] EWHC 246 (Admin), the local planning authority successfully challenged the grant of permission on appeal under 288 of the Town and Country Planning Act 1990 in relation to planning permission for 103 homes, a ten hectare Suitable Alternative Natural Greenspace (SANG) and a public open space with access and car parking, play space and footpaths.  The judgment highlighted errors in relying on mitigation SAC measures to offset impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC).  It also rejected the Inspector’s approach to considering Objectively Assessed Needs (OAN) the applying the requirement under NPPF116 to use seek alternative sites to those in the AONB.

Not much harm, but enough

The authority refused permission on the basis of the countryside location and visual effects of the scheme. It also relied on the likelihood of adverse effects on the integrity of the Ashdown Forest SPA/ SAC (alone and in combination with other plans and proposals) by traffic-related intensification of nitrogen deposition on sensitive heathlands.

Regulation 61(5) of the Conservation of Habitats and Species Regulations 2010 prohibits the grant of permission where there is a possible adverse affect on the integrity of an SAC/SPA, unless there are no alternatives or overriding issues of public importance.

Finding that the development was acceptable in location and general impact terms, the Inspector decided that the impact of the proposals on their own would be insignificant (and risk of a significant in-combination affect with the other development was “low”). His finding that it could be mitigated via financial contributions towards habitat management arrangements (intended to address recreational use pressures) was held to have been unlawful on the basis that he had failed to have regard to evidence showing that not to be the case.

In allowing the developer’s appeal, the Inspector also found are exceptional circumstances in the public interest for the grant of permission within an Area of Outstanding Natural Beauty, given the lack of harm to landscape and scenic beauty. He also rejected the alternative sites proposed by the authority under NPPF116 on both feasibility grounds and, crucially, that they could not meet the whole housing OAN.

OAN role limited for AONB purposes

Whilst generally the approach to alternative sites for the purposes of NPPF116 was considered acceptable (and the matter of planning judgment), the Inspector was held to have failed to properly assess one of the candidate sites put forward (having no evidence to support the conclusion reached, applying Alconbury Developments Limited v Secretary of State for the Environment, Transport and the Regions [2013] 2AC295).  Although he was correct to use the current OAN requirement, rather than that which the Core Strategy could meet, as the benchmark, the Judge rejected his approach of deciding that the existence of alternatives sites was irrelevant given that together they would not have been able to meet the total OAN.

The judgment appears to suggest that a sequential approach is required when applying in NPPF116, so that the existence of an alternative site would be an absolute bar on development in the AONB regardless of whether the development of that site and all other alternative sites would meet OAN.