Campaigners have recently lost a legal challenge against the adoption of a local plan for the Cairngorms National Park. The local plan included a new settlement of up to 1,500 homes at An Camas Mor, near Aviemore, and smaller allocations at Nethy Bridge, Carrbridge and Kingussie.
Those involved had strong views on the benefits or otherwise of the proposed developments within a national park authority area. But what are the aims of national parks? When it comes to development planning, what duty is placed on authorities to balance out these, at times, competing aims? And in producing local plans more generally, how far do authorities have to go in their consultation with the public and in their assessment of the potential effects of proposals on habitats?
National Park aims
National park authorities have a duty to ensure that the following national park aims are achieved:
- conserving and enhancing the natural and cultural heritage of the area
- supporting the sustainable use of natural resources of the area
- promoting understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public
- promoting sustainable economic and social development in the area
If there is a conflict between these aims, the national park authority, in exercising its functions, should give "greater weight" to the first of these aims.
It is common in national park cases for the aims of the park to be a matter of contention. The case reminded us that greater weight should only be given to the first aim where that aim is actually in conflict with one of the other aims. The primary objective for authorities is to work towards achieving all of the aims simultaneously.
Under habitats legislation, the authority has to make an “appropriate assessment” of the implications of projects likely to have a significant effect on a European Site (which is a special site protected under habitats legislation, usually for conservation reasons). As part of this assessment, the authority may "take the opinion of the general public". This case reminds us that it is for the local authority to decide whether public consultation is necessary or appropriate; it is not obliged to do so. In these particular circumstances, the fact that a public inquiry had been held following the publication of the draft local plan was enough to constitute sufficient public consultation on the conservation issues.
Further, an authority can only agree to a plan if has ascertained that the plan will not adversely affect the integrity of a European site. This case tells us that it is not necessary at local plan stage to provide a conclusive answer to all questions raised about the potential for significant adverse effects on the integrity of a European site. The assessment carried out at that stage must be sufficient to inform the local plan. The decision maker must also be satisfied that implementation of the plan would not adversely affect the integrity of the site. In the Cairngorms case, it was enough that the local plan had set out policies (e.g. environmental protection policies) governing the treatment of future planning decisions.
Departure from Reporter’s recommendations
Following an examination of a proposed local development plan, a reporter will produce a report providing recommendations, which may include suggested changes to the plan. This case was considered under the previous legislative regime, where if the authority disagreed with a reporter’s suggested changes to a plan, it did not have to stick with the reporter’s recommendations provided it gave reasons for this. The extent of what was required in terms of reasons varied depending on the issue at hand, affording authorities relatively broad discretion to depart from the recommendations.
However, recent changes in the law mean that if a reporter proposes changes to a draft local development plan, the authority can only decline to make those changes on certain grounds specifically set out in legislation.
Now, the authority can only decline to make the changes if those changes would render the local development plan inconsistent with: the National Planning Framework; strategic development plans; national park plans; and certain specific environmental provisions. Lastly, the authority can reject a reporter’s recommendation where it is based on conclusions that the reporter could not reasonably have reached based on the evidence.
Overall, the case is a useful reminder for planning authorities and developers on the weight that will be given to the - at times - conflicting aims of national parks. When it comes to the discretion afforded to authorities as regards appropriate assessment, this case provides some clarity as to what is required at the local plan stage. Hopefully, future developments in case law will help to clarify the practical application of the new, more stringent rules on following reporters’ recommendations on local development plans.
The full opinion of Lord Glennie in the Appeal by the Cairngorms Campaign and others against the decision of the Cairngorms National Park Authority to adopt the Cairngorms National Park Local Plan 2010  CSOH 153 can be found here.
It has been reported that the case has since been appealed.