ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Sales
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE CHRISTOPHER CLARKE
| Ashdown Forest Economic Development Llp
|- and -
|(1) Wealden District Council
(2) South Downs National Park Authority
WordWave International Limited
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Douglas Edwards QC and David Graham (instructed by Wealden and Rother Shared Legal Service) for the Respondents
Hearing date : 11 June 2015
Crown Copyright ©
Lord Justice Richards :
In order to avoid the adverse effect on the integrity of the Ashdown Forest Special Protection Area and Special Area of Conservation it is the Council's intention to reduce the recreational impact of visitors resulting from new housing development within 7 kilometres of Ashdown Forest by creating an exclusion zone of 400 metres for net increases in dwellings in the Delivery and Site Allocations Development Plan Document and requiring provision of Suitable Alternative Natural Green Space and contributions to on-site visitor management measures as part of policies required as a result of development at SD1, SD8, SD9 and SD10 in the Strategic Sites Development Plan Document. Mitigation measures within 7 kilometres of Ashdown Forest for windfall development, including provision of Suitable Alternative Natural Green Space and on-site visitor management measures will be contained within the Delivery and Sites Allocations Development Plan Document and will be associated with the implementation of the integrated green network strategy. In the meantime the Council will work with appropriate partners to identify Suitable Alternative Natural Green Space and on-site management measures at Ashdown Forest so that otherwise acceptable development is not prevented from coming forward by the absence of acceptable mitigation."
The legal framework
The plan-making process
The SEA Regulations
"Preparation of environmental report
12(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.
(2) The report shall identify, describe and evaluate the likely significant effects on the environment of –
(a) implementing the plan or programme; and
(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
(3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required …."
The information referred to in Schedule 2 includes, in paragraph 8:
"An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information."
The Habitats Regulations
"102. Assessment of implications for European sites and European offshore marine sites
(1) Where a land use plan –
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of the site,
the plan-making authority for that plan must, before the plan is given effect, make an appropriate assessment of the implications for the site in view of the site's conservation objectives.
(4) In the light of the conclusions of the assessment, and subject to regulation 103 (considerations of overriding public interest), the plan-making authority … must give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be)."
"47. It follows that the possibility of there being a significant effect on the site will generate the need for an appropriate assessment for the purposes of art. 6(3). The requirement at this stage that the plan or project be likely to have a significant effect is thus a trigger for the obligation to carry out an appropriate assessment. There is no need to establish such an effect; it is … merely necessary to determine that there may be such an effect.
48. The requirement that the effect in question be 'significant' exists in order to lay down a de minimis threshold ….
49. The threshold at the first stage of art. 6(3) is thus a very low one. It operates merely as a trigger, in order to determine whether an appropriate assessment must be undertaken of the implications of the plan or project for the conservation objectives of the site. The purpose of that assessment is that the plan or project in question should be considered thoroughly, on the basis of what the Court has termed 'the best scientific knowledge in the field' ….
50. The test which that expert assessment must determine is whether the plan or project in question has 'an adverse effect on the integrity of the site', since that is the basis on which the competent authorities must reach their decision. The threshold at this (the second) stage is noticeably higher than that laid down at the first stage …."
The evolution of policy WCS12
"3.32 In accordance with advice from Natural England it will be necessary to reduce the recreational impact of visitors resulting from new housing development within 7 kilometres of Ashdown Forest by creating an exclusion zone of 400 metres for net increases in dwellings, requiring the provision of Suitable Alternative Natural Green Spaces (SANGS) in Uckfield and Crowborough and requiring contributions to on site management measures at Ashdown Forest …."
"Matter 14: The Environment, Climate Change and Sustainable Construction (WCS12)
Main issue – Whether the Core Strategy makes appropriate provision for the protection of the natural environment and other environmental assets and for sustainable construction
a) Has it been demonstrated that the Core Strategy would have no likely significant effects upon internationally important nature conservation sites?
b) Has the proposed 400m 'exclusion zone' around the Ashdown Forest Special Protection Area (SPA) been justified by the evidence base?
c) Has the proposed 7km zone around the Ashdown Forest SPA, within which contributions to Suitable Alternative Natural Green Spaces (SANGS) would be sought, been justified by the evidence base?
d) Is there adequate evidence that the scale of SANGS required can be identified and are deliverable? …."
"22. The Habitats Regulations Assessment (HRA) has addressed the impacts of possible additional disturbance and urbanising effects from residential development on the SPA and indicates that it cannot be concluded that the CS would not lead to adverse effects on the ecological integrity of the SPA. Avoidance and mitigation measures are required including (i) a 400m zone around the SPA where residential development will not be permitted, (ii) a 7km zone where new residential development will be required to contribute to Suitable Alternative Natural Greenspaces (SANGs), and access strategy for the Forest and a programme of monitoring and research. The measures are regarded as critical infrastructure in the Infrastructure Delivery Plan (IDP). This approach is supported by NE [Natural England]. I am satisfied that it is justified by the evidence base (including the 7km zone which is broader than those used elsewhere but justified by local factors).
23. The main impact of these measures would be on the towns of Crowborough and Uckfield and villages within the buffer zones. I have seen evidence that there is a reasonable expectation that suitable SANGs could be provided relating to the SDAs [Strategic Development Areas] in the towns. There is a large supply of open spaces within the District, many under the ownership or management of town or parish councils. NE is confident that SANGs can be delivered. However, for windfall planning applications and smaller sites where SANGS cannot be provided on site there is the possibility that otherwise acceptable development might be delayed while suitable SANGs are identified and brought forward.
24. The CS does not refer to these measures in a policy but includes text suggested in the HRA in supporting justification. The Council has proposed a modification to the plan that would include a policy reference to them being taken forward in subsequent DPDs [Development Plan Documents]. The Strategic Sites DPD is not expected to be adopted until March 2014 and the Delivery and Site Allocations DPD in March 2015. To avoid otherwise acceptable development being delayed it is important that, with appropriate partners, the Council identifies suitable SANGs and develops an on-site management strategy for the Forest as soon as possible in accordance with the conclusions of the HRA. While accepting the general thrust of the Council's approach I propose to add a further modification to the policy to reflect this."
The Habitats Regulations Assessment
"It is possible that the findings of the screening exercise could be superseded upon more detailed analysis during the Appropriate Assessment stage. Wherever changes to screening findings are made, the decision and clear justification is set out in the relevant section of the Appropriate Assessment presented in Chapters Five to Eight."
"At Ashdown Forest it is proposed that the threshold distance within which SANGs should be provided is set at 7km from the SPA boundary (Figure 6.1). This is considered to be sufficient to capture a similar proportion of visitors to Ashdown Forest, as compared to the avoidance measures adopted in relation to the Thames Basin Heaths SPA." (Emphasis in the original.)
"6.6 Appropriate Assessment Findings
Based on the information given above, it cannot be concluded that the Core Strategy will not lead to adverse effects on the ecological integrity of Ashdown Forest SPA if allowed to proceed unchecked. In accordance with the precautionary principle, avoidance and/or mitigation measures are required to remove or reduce the effects.
A series of avoidance and mitigation measures are recommended in Table 6.3, which aim to eliminate the risk of adverse effects at the Ashdown Forest SPA ….
6.8 Residual and In Combination Effects
It is considered that, subject to the measures outlined in Table 6.3 being successfully adopted and implemented, effects connected with increasing recreational pressure can be satisfactorily avoided and reduced. Assuming this is the case, there are no further effects associated with the Core Strategy in relation to disturbance, and therefore the plan can proceed to adoption without further tests under the Habitats Regulations in this respect. As assessment of in combination effects is not required, because the effects of the Core Strategy are removed." (Emphasis in the original.)
The recommendations in Table 6.3 included, in substance and so far as material, the provisions relating to a 7 km zone that were subsequently included in policy WCS12.
"In addition, any net increase in dwelling numbers within 7 kilometres of the Ashdown Forest will require the provision of SANGs with the provision of 8 hectares of land per net increase of 1000 population …."
"We support Sections 3.30 to 3.33 on the Environment and the broad mitigation measures that will be required in order to avoid likely significant effects on designated sites. We feel that the proposed avoidance and mitigation measures of SANGS and contributions for onsite access management will ensure that housing within 7 km will not have a likely significant impact on Ashdown Forest …."
The judgment of Sales J
"106. … As the Commission guidance at para. 4.7 and the court in Save Historic Newmarket Ltd at  and in Heard v Broadland DC at  explain is permissible, the Habitats Regulations Assessment was issued with and incorporated by reference into the Sustainability Appraisal and hence into the environmental report required under the SEA Directive and the Environmental Assessment Regulations; and in the Sustainability Appraisal itself, WDC [Wealden District Council] made clear that it adopted the protection recommendations set out in the Habitats Regulations Assessment. Chapter 6 of the Habitats Regulations Assessment contained a detailed discussion of the issue of disturbance of wildlife at Ashdown Forest through increased recreational pressure associated with new residential development in its vicinity. The protective 7 km SANG zone was stated by WDC's expert environmental consultants to be required to avoid harm to the Ashdown Forest protected site from increased residential development, and this was also the advice of Natural England.
107. The basis for this requirement was set out in the Habitats Regulations Assessment ….
108. Accordingly, in my view, the principled reasoning and evidence base which justified the selection of a protective zone set at 7 km were clearly set out in the relevant environmental report. Indeed, on a fair reading of the Habitats Regulations Assessment/environmental report I think one could say that three alternatives had been canvassed (a 5 km zone in accordance with the precedent at the Thames Basin Heaths; a 15 km zone; and a 7 km zone), and that clear reasons had been given for selecting the 7 km solution chosen to be included in the Core Strategy, namely that the Thames Basin Heaths protective zone was considered to provide a good model for controlling increased visitor numbers to the precautionary level considered appropriate by experts and that an extension of the protective zone around Ashdown Forest to 7 km was assessed to be necessary to provide the same level of protection. Read in this way, I think that the Habitats Regulations Assessment did in fact include a comparative assessment to the same level of detail of the preferred option (a 7 km zone) and two reasonable alternatives, a 5 km zone and a 15 km zone.
109. But even if one does not read the Habitats Regulations Assessment in that way, but rather just as a principled set of reasons for choosing a 7 km protective zone, in line with Mr Pereira's submissions, the reasons given explain clearly why that solution was chosen and, by clear implication, why other solutions were not chosen. Adjusting para.  of Ouseley J's judgment in Heard v Broadland DC for the circumstances of this case, the reasons given for selecting the 7 km protective zone as the relevant mitigation measure were in substance the reasons why no other alternatives were selected for assessment or comparable assessment. No other alternative would achieve the objectives which the 7 km zone would achieve. Again, the objectives of the SEA Directive to contribute to more transparent decision-making and to allow contributions to the development of a strategic plan by the public have been fulfilled in the circumstances of this case. WDC had explained the reasons for choosing a 7 km zone and members of the public were in a position to challenge those reasons and WDC's assessment during the examination of the proposed Core Strategy, should they wish to do so.
110. Mr Elvin sought to suggest that WDC should have commissioned further work to assess other possible options which might have resulted in equivalent visitor densities in relation to bird population density as between Ashdown Forest and the Thames Basin or Dorset Heaths. I do not accept this suggestion. As the Habitats Regulations Assessment made clear, it was largely unknown exactly how and to what extent increased recreational visits might affect the protected bird populations, and any attempt to marry up visitor densities and bird densities in such a precise way would have been a spurious and potentially misleading exercise, which would not have met the points made by WDC's expert environmental advisers and Natural England. Neither of them suggested that there was any alternative which might be suitable and which should be examined further. A decision-maker is entitled, indeed obliged, to give the views of statutory consultees such as Natural England great weight: see Shadwell Estates Ltd v Breckland DC  EWHC 12 (Admin), at . No-one else raised any sustained or developed argument in the course of the iterative process of development of the Core Strategy in favour of a different solution. WDC was entitled to proceed to adopt the solution proposed by both Natural England and its own expert advisers without seeking to cast around for other potential alternatives to examine. To have done so would have been a completely artificial exercise in the circumstances.
112. In these proceedings, the Claimant has adduced evidence from Karen Colebourn, an ecological consultant, giving her opinion about possible mitigation measures "which may be suitable at Ashdown Forest", including decreasing car park capacity or increasing the cost of parking, creation of special dog exercise areas, provision of information and education for dog owners and improvement of strategic walking routes. This is opinion evidence put forward not in the context of the iterative process resulting in adoption of the Core Strategy, but well after the event. No concrete, worked through proposals are set out and there is no evidence to suggest that such measures would actually work by themselves. I accept Mr Pereira's submission that it cannot sensibly be contended on the basis of Ms Colebourn's evidence that no reasonable planning authority would have failed to identify these as "reasonable alternatives" so as to be obliged to assess such ideas or their efficacy in the Sustainability Appraisal. I am fortified in this view by the fact that the Inspector did not consider that further assessment work was required in relation to this part of the Core Strategy."
The appellant's case
The Council's case
"138. It would be a mistake in my view to read these cases as requiring automatic 'nullification' or quashing of any schemes or orders adopted under the 1984 Act where there has been some shortfall in the SEA procedure at an earlier stage, regardless of whether it has caused prejudice to anyone in practice, and regardless of the consequences for wider public interests. As Wells … makes clear, the basic requirement of European law is that the remedies should be 'effective' and 'not less favourable' than those governing similar domestic situations. Effectiveness means no more than that the exercise of the rights granted by the Directive should not be rendered 'impossible in practice or excessively difficult'. Proportionality is also an important principle of European law.
139. Where the court is satisfied that the applicant has been able in practice to enjoy the rights conferred by the European legislation, and where a procedural challenge would fail under domestic law because the breach caused no substantial prejudice, I see nothing in principle or authority to require the courts to adopt a different approach merely because the procedural requirement arises from a European rather than a domestic source."
"We are aware that the current approach is a matter of concern, and that the SANGS requirement in particular is seen by developers as an obstacle to housing delivery. Our expectation is that a combination of different measures would be most effective in protecting the forest from the effects of an increase in recreational disturbance but we are mindful that reliance on SANGS for this does present a risk of delay in putting in place a scheme which would stream line the granting of planning permission for housing. In order to avoid such a delay, our advice is that a strategic scheme of avoidance and mitigation measures can be put in place, in a phased approach, so that at no point is it necessary to refuse planning permission on strategic (non case specific) grounds relating to recreational disturbance on the SPA and SAC.
Our understanding is that in the next two to three years, approximately about 800 houses are likely to come forward in your two authority areas and figures have been provided to indicate that this will increase visitor numbers on the forest by about 1.7% ….
In order to ensure that we are aware of the options to safeguard the SPA and SAC which will be least burdensome to developers, we have explored with the Conservators of Ashdown Forest their views on access management and monitoring. They have indicated to us that in principle they would be willing to take on additional resources, as part of a broader programme of measures, to increase the level of monitoring and wardening on the forest. Our advice is that this could be made sufficient to address at least the potential increase in visitor numbers on the scale indicated above ….
Early implementation of a scheme for increased monitoring and wardening would not only have benefit itself in enabling development to proceed, but with the monitoring built in, it should also provide information to inform the balance of measures put in place over the longer term. This would help to ensure their effectiveness in safeguarding the SPA and SAC, at lowest cost to development."
Lord Justice McFarlane :
Lord Justice Christopher Clarke :