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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wealden District Council v Secretary of State for Communities and Local Government & Anor  EWHC 247 (Admin) (17 February 2016)
Cite as:  EWHC 247 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| WEALDEN DISTRICT COUNCIL
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) KNIGHT DEVELOPMENTS LIMITED
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
Crown Copyright ©
Mrs Justice Lang :
Refusal of planning permission by the Council
"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
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.
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
i) Nitrogen deposition. The Inspector erred in law when concluding that the proposals would have no significant effect on the Ashdown Forest SAC, pursuant to section 61 of the Habitats Regulations, in particular:a) in finding that contributions to SAMMS would mitigate any such effect; orb) by failing to have regard to evidence that proposed contributions to heathland management could not effectively mitigate any such effect.
ii) NPPF 116 & alternative sites. The Inspector erred in his consideration of NPPF 116 when concluding that there were no alternative sites to meet the need for the proposed development, by failing to take into account relevant evidence or acting unreasonably.
iii) Inadequate reasons. The Inspector's reasons for his findings on Grounds (i) and (ii) above fell below the required standard.
A. Applications under section 288 TCPA 1990
"… An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."
"It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision ….. he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 … Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"
i) A mistake as to an existing fact.
ii) The fact must be uncontentious and objectively verifiable.
iii) The party relying upon the mistake must not have been responsible for it.
iv) The mistake must have played a material (but not necessarily decisive) part in the public body's reasoning.
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
B. The determination of an application for planning permission
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33,  1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:
"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it." "
"18. … The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained…..these considerations suggest that, in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department  QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. They are intended to guide the decisions of planning authorities, who should only depart from them for good reason.
19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v. Secretary of State for the Environment  1 WLR 659, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."
C. Protection of Habitats
"(e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species…"
"The conservation status of a natural habitat will be taken as 'favourable' when:
- its natural range and areas it covers within that range are stable or increasing, and
- the specific structures and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future, and
- the conservation status of its typical species is favourable as defined in (i)."
"A competent authority, before deciding to undertake, or to give any consent, permission or other authorisation for a plan or project which –
(a) is likely to have a significant effect on a European site…(either alone or in-combination with other plans and projects), and
(b) is not directly connected with or necessary to the management of that site,
must make an appropriate assessment of the implications for that site in view of the site's conservation objectives."
"In the light of the conclusions of the assessment, and subject to regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site…"
"43. In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of art 174(2) EC …. and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned …. Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised and thereby contributes to achieving, in accordance with ….. the Habitats Directive …..its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora."
Ground 1: nitrogen depositions
A. Evidence and issues on appeal
B. Inspector's decision
"Ashdown Forest (AF) – Nitrogen (N) deposition
Annual Average Daily Traffic Flow (AADT)
"55. The A26 is a major route from Crowborough to the larger town of Tunbridge Wells and passes close to the AF. Traffic flows on this section of road vary …. From just over 16,000 to nearly 18,000 vehicles per day. Additional houses are likely to lead to additional car journeys. Nitrogen (N) deposits from vehicle exhausts can affect vegetation through increased acid deposition (from exhaust and other gases dissolved in rainwater) and from eutrophication, that is the over-enrichment by nutrients leading to greater proliferation of other forms of vegetation other than the heaths. With regard to traffic, the concerns are the likely level of increase in annual average daily traffic (AADT) along roads adjacent to the AF and the resultant effect of this on N deposits. It follows that, in adopting the precautionary principle, restricting any increase in housing would limit any increase in harm to the AF."
"57. The Council then undertook a Habitats Regulations Assessment (HRA) screening exercise for the CS, including the AF SAC, using the method in DMRB and 1,000 AADT as the threshold for an appropriate assessment. It identified the heaths there as one of the most sensitive habitats in the district and that the baseline N deposition exceeds critical loads with in the AF…."
"58. The CS Inspector looked at the issue of N deposition. In considering the appropriate housing provision he noted the Council's concern that, in north Wealden, levels of development beyond those proposed would have a significant effect on the AF SAC in terms of N deposition. In finding the CS to be sound, the Inspector noted that the estimate of 950 AADT did not leave much headroom. On the basis of the evidence before him, he found that further development should be restricted on a precautionary basis at least until an early review of N deposits, anticipated to be in 2015. This approach was upheld in the High Court."
"62. I acknowledge the arguments that the figure of 950 AADT may be inaccurate … and that the scheme might well not generate levels in excess of 1,000 AADT in any event. Nevertheless, given the conclusions in the CS, I find that further development likely to affect the AADT along the A26, beyond that anticipated in the CS, should not automatically be screened out."
"66. …while the appellant's study concludes that the effects of the proposed development would be insignificant at the receptors in the AF, it does not exclude any impact."
Conclusions on N deposits
"67. Notwithstanding my conclusion on air quality, there is little evidence of a direct link between AADT along the A26 and eutrophication in the AF. It is common ground that the proposals alone would not generate sufficient AADT above the threshold required to result in a significant effect and the only issue was from in-combination effects. Nevertheless, I accept that a precautionary approach should be taken that, given the importance of the SAC, and the requirements of the Habitats Regulations, this is a high bar. In the form the application was submitted, there would be some risk, however low, of a significant in-combination impact."
"68. The appellant has subsequently offered contributions to SAMMS in accordance with its evidence of habitat management practice elsewhere and using the best information on tariffs available (see under s.106 below). As well as addressing the problems caused to the SPA by dogs, the contributions would also be used to take measures such as cutting and grazing to reduce nutrient levels. While not accepting that the contributions were acceptable, the Council did not offer any contrary evidence to indicate that the projects which could be funded by SAMMS would not be effective in reducing what would in any event be a very low risk of additional eutrophication. I therefore accept from the evidence before me that, as well as supplementing the SANG, the SAMMS contribution would have a significant beneficial effect on biodiversity in the AF and so also offset any small chance of harm as a result of N deposition.
"69. I acknowledge that the evidence of habitat management …. was produced late on. However, this follows on from discussions which the Council has been having with NE for a number of years even prior to 2013. At that time NE anticipated that a scheme of contributions for wardening and monitoring could come forward within a very small number of months. To date, nothing has been finalised."
"70. In a recent response to another application, NE commented that its approach to air quality issues differs from the Council's in that its specialists advise that an in-combination assessment is not required unless a proposal is considered significant alone … As that proposal would not breach these thresholds it had no objection. While I note that this response concerned a development on quite a different scale and I have taken a more precautionary approach, this reinforces my conclusion that, with mitigation, there would be no LSE. "
"71. I note that NE had no objection to the scheme with regard to air quality issues and so, while it may not have considered the SAMMS mitigation, this would not affect its response on this point. Overall, even if there were clear and specific evidence that there would be an increase in N deposition on the AF which would measurably reduce plant diversity and harm habitat conservation, which there is not, contributions to SAMMS would make positive and demonstrable improvements to the habitat on the AF. These would have a beneficial effect on biodiversity which would clearly outweigh any unproven and, at worst, almost negligible harm from N deposits."
"72….. even taking account of the low threshold required by Sweetman, with mitigation, there would be no LSE on the heaths. It follows that an appropriate assessment is not required, and that concerns with regard to N deposition should not prevent the development."
Conclusions on the AF
"74. The CS Inspector adhered to the precautionary approach to the European sites. However, given the contributions to SAMMS through the s106 obligation, the LSE, if any, can be minimised or avoided altogether and there is little doubt that the necessary mitigation can be put in place. For the reasons set out above, I find that the contributions satisfy the tests in the NPPF and would improve diversity to a degree that would safely exceed the theoretical harm on account of increased traffic and consequential deposition."
"75. Mitigation should be in place before harm occurs. Conditions would require the proposed on-site SANG. The SAMMS contributions would also be paid in accordance with a timetable. There would be a delay between payment and occupation which would enable measures to be put in place."
"76. … subject to conditions and the section 106 obligation … I concluded that the proposed mitigation would sufficiently overcome any possible LSE on biodiversity to the SPA or SAC and that an appropriate assessment is not required. … In the event of an appropriate assessment, which does not apply, I note that there is a statutory requirement to consult the appropriate nature conservation body. As NE has commented on the application, made its views very clear, and delegated any decision to the Council, I consider that this requirement has already been met anyway."
"105. SAMMS contributions would be paid to the Council either at the rate adopted at that time, of failing that, based on the current tariff adopted by MSDC. The reason for this is that MSDC has an interim SAMM strategy in place, with costed projects, and the intention that contributions would be channelled to the Conservators of AF who have agreed on a range of heathland management projects. These could be used to offset impacts from the appeal on either recreational use or N deposits, or both. For the reasons I set out above, these contributions are needed, directly related to the development and given the joint working by MSDC and NE, are of an appropriate scale." "
C. Conclusions on alleged errors of law
"Ashdown Forest is an attractive and compelling recreational resource. Whilst SANGS are considered to be an essential and effective mitigation measure to help ensure that visit rates do not increase it has been identified that local residents enjoy using a variety of green spaces for their recreational activity including Ashdown Forest. It is likely therefore that residents living in new development will still visit and use the SPA from time to time even with the provision of SANGS. The aim of strategic access management measures and associated monitoring is to therefore reduce the likelihood of any adverse impact on the protected bird species during the breeding season should residents from new development choose to visit the forest."
"To provide confidence that…there will be no increase in harm caused as a result of recreational pressure on the SPA. The projects considered necessary to effectively deliver this mitigation include the following:
The production and promotion of a Code of Conduct for dog walkers;
The provision of signage/interpretation boards at car parks;
The employment of a Volunteer Dog Ranger Manager;
The employment of Dog Ranger Volunteers;
Responsible dog ownership training;
The employment of an Education, Community Events and Activities Co-ordination;
The employment of two Countryside Workers;
Visitor monitoring; and
"110c. there is no evidence of any discussions, let alone agreement, with the relevant stakeholders, including the Ashdown Forest Trust or East Sussex County Council or Natural England, who would have to be involved in the implementation of any management plan and any consideration of whether it would be appropriate having regard to other factors…"
"More recently, elevated deposition of nitrogen is thought to have contributed to widespread heathland decline throughout NW Europe."
"Current and future legislation will reduce emissions of nitrogenous pollutants, but little is known about the ability of semi-natural ecosystems to recover from the effects of eutrophication. Ongoing work at Thursley Common, a lowland heath in Surrey indicates that recovery will be a slow process, with the effects of earlier N inputs persisting for many years after additions cease."
"Air pollution is not the only driver of ecosystem change; climate change is likely to have detrimental effects on heathland vegetation and alter nutrient cycling. Research has shown that N addition increases the sensitivity of heather to drought; climate change may result in even greater levels of drought injury, particularly in-combination with elevated N deposition…."
"Habitat management in the form of controlled burning, turf cutting, mowing or grazing is used as a tool to maintain low nutrient levels in lowland heaths. Recent results from both experiments and modelling studies indicate that frequent, intensive management (for example turf cutting or mowing with litter removal) is needed to retain nutrient-limited conditions at many heathland sites under current levels of N deposition."
"The total payment of £12,500 (£500 per hectare over a 100 year period cutting on rotation every 25 years), towards heathland management measures on Ashdown Forest to include management of 5 hectares of land associated with a 255m section of the A26 road x 200m into the SAC."
i) Lowland heath required management in any event to prevent succession and maintain the ecosystem and the application of traditional management techniques was required to maintain the existing habitats and therefore was unlikely to mitigate the effects of nitrogen deposition.
ii) The effects of heathland management and its relationship with retained nitrogen were uncertain and difficult to predict due to variations between sites in respect of their physical and environmental conditions and the species present. There was therefore a need for site specific ecological investigations and modelling of the form that the Council would be undertaking in order to determine the likely effect of mitigations proposed.
iii) The Defra document was a research pamphlet which referred only in very general terms to the fact that intensive heathland management was required to maintain nutrient conditions at many heathland sites under current levels of deposition. This did not of itself avoid the need to investigate the site in question to determine what management techniques were in place and what the potential effects of other techniques might be.
iv) Management techniques to reduce the effects of nitrogen deposition have been found to have unintended adverse ecological consequences including damage to other plants, animals, birds, carbon storage, impacts upon water quality and the loss of the seed bank. These potential consequences had not been addressed by Knight.
v) No evidence was provided in relation to the nature of current activity or management regime on the relevant land and it was not possible to determine whether Knight's proposal was practical.
vi) Knight had not provided evidence of the nature and scale of potential impacts upon the heathland habitats and was therefore unable to provide evidence that the proposed mitigation would be sufficient.
vii) Due to the high level of uncertainty, it was not possible to propose suitable mitigation without further study to determine the potential impact of the proposed mitigation techniques.
viii) There was no certainty that the mitigation techniques would be accepted by those who might implement them.
D. Conclusions on the exercise of discretion to refuse relief
"28. Based on the DMRB [Design Manual for Road and Bridges] results, one section of the A26 would have an additional AADR of 950, indicating very little headroom for development beyond that proposed without further assessment to determine whether there would be a likely significant effect on the Ashdown Forest SAC. This work has not been done. However, the best available evidence on the existing nitrogen deposition load toward the centre of the SAC is that it significantly exceeds the ability of habitats to withstand deleterious effects. Deposition is likely to be more severe close to road corridors. Furthermore, I am mindful that the traffic modelling does not take account of possible traffic impacts of growth in neighbouring authorities. Although heathland management may have some part to play in mitigating the effects of nitrogen deposition, in the context of these other facts there is sufficient evidence at this point on a precautionary basis to restrict further development in north Wealden beyond that in the CS….."
"29. It has been concluded that in relation to the WWTWs issue an early review of the plan is required. Air pollution relating to Ashdown Forest SAC could in the future restrict further planned development which might otherwise be acceptable. To ensure that the housing and other needs of the area are being addressed in the context of the Framework, for the review it would be important to establish more accurately the current extent and impact of nitrogen deposition at Ashdown Forest, the potential effects of additional development on the SAC and the possibility of mitigation if required, working collaboratively with the other affected authorities. I therefore include an appropriate modification to this effect…"
"The Council will also undertake further investigation of the impacts of nitrogen deposition on the Ashdown Forest Special Area of Conservation so that its effects on development in the longer term can be more fully understood and mitigated if appropriate."
"80 In my view, the Inspector's reasoning on this part of the case is rational and compelling. He was entitled to conclude that WDC had produced sufficient evidence in relation to the risk of environmental harm to Ashdown Forest to justify the use of the smaller 9,600 housing figure in the Core Strategy, that the possibility that further work on the issue of nitrogen deposition would show that a higher housing figure could be accommodated was so speculative and likely to be so delayed as not to warrant holding up the approval of the Core Strategy, and that this possibility would be more appropriately accommodated by requiring further investigatory work to be carried out after the adoption of the Core Strategy and when other neighbouring authorities were more advanced in producing their own development plans.
81 Similarly, I consider that WDC acted in a rational and lawful way in making the examination of the nitrogen deposition issue which it did and in not seeking to undertake any further or more detailed investigation before deciding to submit and then to adopt the Core Strategy. WDC had taken reasonable steps to inform itself about relevant matters in respect of that issue and it was not irrational for it to choose not to pursue further investigations before proceeding to decide that it was appropriate to select Scenario C for assessment under the SEA Directive and to adopt a Core Strategy based on a figure for new homes derived from Scenario C: cf Secretary of State for Education and Science v Tameside MBC  AC 1014 , 1065B; Cotswold DC v Secretary of State for Communities and Local Government  EWHC 3719 (Admin), -; and R (Khatun) v Newham LBC  EWCA Civ 55;  QB 37 , -. WDC's assessment was that any housing development above that in the Core Strategy would exceed the 1,000 AADT flows threshold and require a detailed "appropriate assessment" (which, given the low headroom below that figure even for the number of new homes in the Core Strategy, was plainly a rational view); and it was informed by environmental consultants and Natural England that a full detailed "appropriate assessment" of the impact of proposals for development above the 1,000 AADT flows threshold would require traffic modelling on a co-ordinated approach between planning authorities (see, in particular, paragraphs 32, 92 and 124 of Marina Brigginshaw's first witness statement for WDC). The Inspector did not err in concluding that WDC had properly made out its case for deciding to proceed with Scenario C without further examination at the plan making stage of the nitrogen deposition issue."
"Natural England notes that the proposal is accompanied by an air quality assessment. The text of the environmental statement states that this will consider air quality impacts of existing strategic sites, air quality impacts of the proposed site (in the absence of the strategic sites) and air quality impacts of the proposed sites in combination with the strategic sites. This does not appear to be the case and it is unclear from the assessment what has been assessed. We note that the Council have asked their own air quality consultants to comment on this aspect on the application so we are satisfied that air quality impacts will be considered by the Council prior to determination."
"Regarding Air Quality, as discussed with the Council I am satisfied that as you have air quality consultants assessing and commenting on this aspect, I am satisfied that it is being adequately addressed and therefore Natural England have no need to comment on this aspect."
Ground 2: NPPF 116 & alternative sites
A. The NPPF
"115. Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty…"
"116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:
- the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
- the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
- any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which it could be moderated."
B. Evidence and issues on appeal
"82 There is nothing in the guidance in the NPPF which indicates that the Inspector proceeded in an illogical or irrational way, or in a way which conflicted with that guidance. In particular, he was entitled to conclude, in conformity with paragraph 158 of the NPPF, that WDC had produced sufficient objective evidence to justify its adoption of the figure of 9,600 (later reduced to 9,440), rather than 11,000, for new homes."
C. Inspector's decision
"89. While housing, and AH, could theoretically be developed elsewhere, most of the district is within the AONB and so there are few alternatives that are not equally constrained. The Council put forward the Pine Grove and South East Crowborough (SEC) emerging allocations. However…the Pine Grove allocation was not endorsed by the SSLP [Strategic Sites Local Plan] Inspector and SEC has potential highways problems. Even if the latter can be resolved, and it appeared to me that they could, this does not alter the fact that there is a need for more housing as well as at SEC. Even if the search for alternative sites is taken wider than Crowborough, there is a lack of housing land to meet the full OAN and one alternative being considered when preparing the draft SSLP would itself be in the AONB. The existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative and there are no plans, through the duty to co-operate or otherwise, for neighbouring districts to provide for the shortfall.
90. Moreover, the withdrawal of the SSLP makes it less likely that more sites will come forward and strengthens the case that housing can amount to exceptional circumstances. This applies particularly to the AH which would amount to 40% of the proposed dwellings. In the absence of adequate housing land to meet the full OAN, let alone the AH requirements, I find that there is a need for the development. Moreover, taken with the lack of harm that would be caused to its landscape and scenic beauty, I find that this need amounts to exceptional circumstances to justify development in the AONB.
91. As set out above, mitigation would be put in place to deal with the detrimental effects. For all these reasons, I find that exceptional circumstances do exist and that the proposals would accord with NPPF 116. I note that at Heathfield and Wadhurst the Council also found that the need for housing, and AH, amounted to the exceptional circumstances with regard to NPPF 116. I find that this analysis should also apply to the appeal proposals and that no precedent would be set by allowing the appeal."
i) did not adequately address and resolve the conflicting evidence on the extent of the objectively assessed need for housing, including affordable housing.
ii) did not adequately assess the alternative sites which were available, either within Crowborough or the wider district.