England and Wales High Court (Administrative Court) Decisions

The first claim (the “Canterbury case”)

“Full: Demolition of existing Dwelling house in Conservation Area and two other dwellings, change of use of lagoon to allotments, ecological habitat and footpath link and improvements along Bullockstone Road.

Outline: Development of a new mixed use neighbourhood with up to 800 dwellings, commercial and community development within a local centre, spine road, estate roads, other means of access, pedestrian and cycle links, improvements to existing footpath, sustainable urban design drainage measures, landscaped noise bund/ earthworks and boundary treatments, public open space, highway related and utilities infrastructure. Approval is sought for means of access from Canterbury Road and Bullockstone Road.”

“Thanet Coast and Sandwich Bay SPA/Ramsar

5.1.31 Should an increase in visitor numbers to Thanet Coast and Sandwich Bay SPA/Ramsar arise as a result if the Lower Herne Village development, this would have the potential to disturb the bird populations which contribute to the special interest of this designated site.

5.1.32 Despite the generous provision of accessible greenspace as part of the proposed scheme, it is acknowledged that a proportion of the new residents are still likely, on occasion to visit the Thanet Coast and Sandwich Bay for the purpose of recreation, owing to the different type of recreational experience the coastline can offer.

5.1.33 As detailed in the HRA screening statement for the draft local plan (AMEC, 2013), it is anticipated that the presence of management plans for those European sites impacted by recreational activities, such as Thanet Coast and Sandwich Bay, will mitigate the potential adverse effect on increased numbers of recreational visitors associated with the Project. If necessary, this will involve restricting public access from sensitive areas of the sites or at sensitive times of the year through, for example, the provision of wardening, improved waymarked trials and signage.

5.1.34 In light of the above, it is understood that the draft local plan, once adopted, will be supported by the Strategic Access, Mitigation and Monitoring Plan for European designated sites in the Canterbury District. This Plan will be applied to new residential development within the zone of influence of those Natura 2000 sites designated for their bird populations and identified as being vulnerable to an increase in recreational pressure. This will ensure that no likely significant effects will result from development proposed under the local plan.

…

5.5.36 As there may be some minor use of the Thanet Coast and Sandwich Bay SPA by residents of the Lower Herne Village, despite the generous on-site provision of accessible greenspace, there remains the potential for disturbance upon the bird populations it supports.

5.1.37 The developers of the Project site are therefore committed to providing the necessary level of financial contribution (appropriate to the scale of development and its distance from the Thanet Coast and Sandwich Bay SPA/Ramsar) towards its on-going access management. This will be in accordance with the Strategic Access, Mitigation and Monitoring Plan for the Thanet Coast and Sandwich Bay SPA, as and when formally adopted. This approach has already been discussed and agreed in principle with CCC.

5.1.38 Taking into account the degree of onsite provision of accessible greenspace to be delivered as part of Lower Herne Village, and the commitment to providing financial contributions towards on-going access management for sensitive habitats, no likely significant effects upon the bird populations for which the Thanet Coast and Sandwich Bay SPA/Ramsar is designated are expected.”

“10.9.7  Statutory and non-statutory sites of nature conservation importance will not be subject to significant effects during construction. The implementation of a carefully designed SUDs strategy within the scheme design will also ensure impacts on designated areas as a result of changes to hydrology during operation of the proposed development, are avoided.

10.9.8    Minor adverse impacts associated with an increase in recreational use of the Thanet Coast and Sandwich Bay SPA/Ramsar during operation of the proposed development are possible. This is despite the generous provision of on-site accessible greenspace to be delivered as part of the proposed development, which will absorb much of the daily recreational needs of the new residents. The Applicant is therefore committed to providing a financial contribution towards the agreed visitor management measures. It is expected this will ensure significant effects on the Thanet Coast and Sandwich Bay SPA/Ramsar arising from recreational use are avoided.”

“ Town and Country Planning (Development Management Procedure) (England) Order 2010

The Conservation of Habitats and Species Regulations 2010 (as amended)

The Wildlife and Countryside Act 1981 (as amended)

The application site is in close proximity to European designated sites (also commonly referred to as Natura 2000 sites), and therefore has the potential to affect their interest features. European sites are afforded protection under the Conservation of Habitats and Species Regulations 2010, as amended (the ‘Habitats Regulations’). The application site is located approximately:

-        960m north-east of West Blean and Thornden Woods Site of Special Scientific Interest (SSSI)

-        1.2km north-west of the Blean Complex Special Area of Conservation (SAC) and East Blean Woods SSSI

…

-        2.2km south of Thanet Coast & Sandwich Bay Special Protection Area (SPA) and Ramsar site and Thanet Coast SSSI

-        3.3km southeast of Tankerton Slopes and Swalecliffe SAC

Please see the subsequent sections of this letter for our advice relating to SSSI features.

In considering the European site interest, Natural England advises that you, as a competent authority under the provisions of the Habitats Regulations, should have regard for any potential impacts that a plan or project may have. The Conservation objectives for each European site explain how the site should be restored and/or maintained and may be helpful in assessing what, if any, potential impacts a plan or project may have.

We note the Habitats Regulations Assessment Screening Statement provided with the proposals.

In advising your authority on the requirements relating to the Habitats Regulations Assessment, and to assist you in screening for the likelihood of significant effects, based upon the information provided, Natural England offers the following advice:

-        The proposal is not necessary for the management of the European sites

-        Subject to the following…

-        Appropriate financial contributions is made to the Thanet Coast and Sandwich Bay SPA Strategic Access Management and Monitoring (SAMM) Plan being developed in conjunction with Thanet District Council

-        This strategic mitigation will need to be in place before the dwellings are occupied

-        Best practice measures through the Construction Environmental Management Plan (CEMP) and Sustainable Drainage Scheme to prevent contaminated surface run-off during construction and operation entering hydrological links to the Thanet Coast and The Swale SPAs/ Ramsar sites

-        Confirmation from Southern Water that the Herne Bay Wastewater Treatment Works can accommodate sewerage discharge from the Strode Farm development

Natural England is satisfied the proposals are not likely to have a significant effect on the Blean Complex and Tankerton Slopes and Swalecliffe SACs.”

“i) SPA mitigation

4.3         As identified in chapter 10 of the ES the worst case assessment of impacts on Statutory Designated Areas of Nature Conservation Importance was of a minor adverse effect to the Thanet Coast and Sandwich Bay SPA which can be mitigated by financial contributions towards the management of the SPA. Accordingly, the appellant has agreed to secure the full requested obligation on a pro-rata basis towards the delivery, in perpetuity, of the Thanet Coast and Sandwich Bay SPA SAMM Plan in their S.106 Agreement to mitigate the impact of the development. The LPA has no objection to the proposal in this regard on the basis of this obligation being secured in full. This figure will be apportioned on a pro rata basis in the S106 Agreement depending on the final number and mix of dwellings to be approved at Reserved Matters stage.”

“2.9  There are no designated areas of nature conservation interest within the Strode Farm site. However within a radius of 5km are West Blean and Thornden Woods Site of Special Scientific Interest (SSSI), the Blean Complex Special Area of Conservation (SAC) and the East Blean Woods SSSI. Along the coast are located Thanet Coast and Sandwich Bay Special Protection Area (SPA) and Ramsar site and Thanet Coast SSSI, together with Tankerton Slopes and Swalecliffe SAC. As set out in its statutory consultation response, Natural England was satisfied that, subject to mitigation, the proposals would be unlikely to have a significant effect on these sites.”

 “Natural environment

11.109   The residential development would be likely to increase recreational activity within the internationally important Thanet Coast and Sandwich Bay SPA and Ramsar site. The potentially harmful impact is able to be adequately mitigated by a planning obligation, which secures a financial contribution towards the implementation of the SAMM before the commencement of each phase. As a consequence the development would be unlikely to have a significant effect on the important interest features of the SPA, whether alone or in combination with other plans and projects. The obligation is directly related to the development and is necessary to make the scheme acceptable in planning terms through compliance with the CDLP Policies SP6, LB5 and LB6 on SSSI’s. The sum is linked to the proposed number of dwellings and hence the obligation is fairly and reasonable related in scale and kind to the development. An appropriate assessment of the implications of the proposals for the SPA is not necessary. [2.9, 3.8, 3.22, 5.4, 10.23-10.25]

11.110   Reliance on the use of best practice measures through a CEMP and a sustainable drainage scheme would be appropriate to prevent contaminated surface run-off during construction entering hydrological links to the Thanet Coast SPA and Ramsar sites. [2.9, 10.5, 10.6]

11.111   On the basis of the advice of Natural England, the development is unlikely to have a significant effect on the Blean Complex and Tankerton Slopes and Swalecliffe SACs. [2.9]”

“Conclusion on timing

11.84 The completion of the spine road by the 410 ^th dwelling is required to avoid the development having a severe impact on the capacity of the A291 and reducing highway safety for a significant period of time during construction. To delay the ability for residents to have good access to public transport and more particularly a bus service would be contrary to policy objectives to give people a real choice about how they travel and to reduce social exclusion. In the centre of the village increases in traffic would make the pedestrian environment inhospitable and delay securing improvements in air quality. Amenity would deteriorate. Overall there would be a severe impact on the community.

11.85 The phasing of the development has not been satisfactorily addressed, contrary to a requirement of Policy SP3. Insufficient account has been taken of principles of the Transport Strategy in Policy T1 namely (a) controlling the level and environmental impact of vehicular traffic including air quality, and (b) providing alternative modes of transport to the car by extending provision for pedestrians, cyclists and the use of public transport. A failure to deliver the HRR at an appropriate point in the development programme would delay the provision of an integral part of the development, undermining the intent of Policy T13.”

“Proposed contribution

11.92 The outstanding total sum of £4,581,883, as stated in the SCG – HRR, was calculated on a delivery date of 2020 and was based on an estimated cost. The appellant’s contribution of £2,331,000 towards the KCC BRIS would be in accordance with the apportionment set out in the SCG – HRR. The planning obligation allows for the contribution to be increased in line with the All Construction Tender Price Index (or equivalent). There is no provision to reflect any change to the base cost of the scheme as a result of a detailed cost plan or alterations to the scheme that were made prior to the grant of planning permission. The omission is significant and could result in a shortfall in the necessary contribution, even without taking account of the considerations raised by the Council.

11.93 The contribution is timed to be made prior to the occupation of the 500 ^th dwelling to tie in with the appellant’s proposal to complete the spine road in the final phase of development. I have concluded that delivery of the HRR earlier in the development programme is justified in order to achieve policy objectives. Consequently the contribution should be paid on first occupation of the 250 ^th dwelling in accordance with the Council’s requirement.

11.94 For these reasons alone the planning obligation fails to ensure the necessary infrastructure is provided in an acceptable timescale and that a proportionate contribution is secured. Consequently there is a failure to comply with Policies SP3 and T13.

11.95 The Council is requiring the appellant not only to pay its share of the cost of the Kent BRIS but also the sum apportioned to Hillborough, for an interim period at least until that side comes forward for development. It is the case that the wording of the Policy SP3 is less definitive for Hillborough (site 3) when compared to Strode Farm in respect of the Bullockstone Road infrastructure. However, when the traffic and environmental impacts are taken into account there is strong justification for Hillborough to contribute to the Kent BRIS. Policy T13 is reasonably interpreted in such a way. The SCG – HRR also strongly supports such an approach.

11.96 An essential test is whether the obligation would be fairly and reasonably related in scale and kind to the development to be permitted. Viability and flexibility on other related infrastructure provision are not determining factors. It would be disproportionate to require the appellant to commit to pay all the outstanding balance now with no enforceable mechanism in place to ensure the Hillborough share is secured.

11.97 The planning position has moved on with the adoption of the CDLP. There is the prospect of the Hillborough sites coming forward within a short timescale that could offer a way forward and avoid a serious delay to housing delivery on sites that are allocated in the development plan. The matter at issue now is primarily one of timing and coordinating development with the essential infrastructure to serve it. The onus is on all interested parties to come forward with a solution that avoids KCC forward funding the project and not recovering the costs of doing so.”

“Conclusions on highway infrastructure

11.99 There are no outstanding issues regarding the design standard of the proposed highway infrastructure at this outline stage.

11.100 The proposal would not deliver the HRR at an acceptable stage in the development by reason of the phasing programme and the timing of the contribution to the Kent BRIS. There is a shortfall in funding the Kent BRIS.

11.101 The proposal would not deliver the highway infrastructure required to enable the Strode Farm development to proceed in a timely and coordinated manner. Safe and suitable access to the site would not be achieved for all and the residual cumulative impact of the development would be severe through the construction phase.”

“Highway Infrastructure

55. The Secretary of State has given careful consideration to the Inspector’s analysis at IR11.40-11.77. He notes at IR11.42 that the principle matters in dispute between the main parties are timing and funding for the Herne Relief Road (HRR).

56. With regard to capacity, for the reasons given at IR11.45-11.60, the Secretary of State agrees with the Inspector at IR11.61 that there would be a capacity objection even without the Hillborough development and that completion of the HRR would be necessary in advance of proposed timescale.

57. With regard to highway safety, for the reasons given at 11.62-11.68, the Secretary of State agrees with the Inspector that the HRR would improve highway safety on the A291 through Herne (amounting to a moderate benefit), while the delay in providing the HRR would have a small negative effect.

58. The Secretary of State has given careful consideration to the Inspector’s analysis on public transport at IR11.69-11.77. Like the Inspector at IR11.70, the Secretary of State considers that on current evidence the spine road and the Kent BRIS both need to be in place to ensure a bus service operates through the site. He notes that the phasing programme put forward by the appellant would not deliver completion of the spine road until the final phase of the development, which could be some 8 years or more from commencement of development (IR11.74).

59. Overall, like the Inspector at IR11.84, the Secretary of State concludes that the completion of the spine road by the 410 ^th dwelling is required to avoid the development having a severe impact on the capacity of the A291 and reducing highway safety for a significant period of time during construction. He agrees with the Inspector that to delay the ability for residents to have good access to public transport and more particularly a bus service that would be contrary to policy objectives to give people a real choice about how they travel and to reduce social exclusion. For the reasons given by the Inspector at IR1.78-11.83, the Secretary of State agrees with the Inspector at IR11.84 that in the centre of the village increases in traffic would make the pedestrian environment inhospitable and delay securing improvements in air quality, amenity would deteriorate, and overall there would be a severe impact on the community.

60. For the reasons given at IR11.84-85, the Secretary of State agrees with the Inspector that the phasing of the development has not been satisfactorily addressed contrary to a requirement of SP3; that insufficient account has been taken of the principle of the Transport Secretary in Policy T1; and that the intent of T13 would be undermined.

61. The Secretary of State has given careful consideration to the Inspector’s analysis on funding for highway infrastructure at IR11.86-11.97. For the reasons given at IR11.92-11.94 he agrees with the Inspector that the planning obligation fails to ensure the necessary infrastructure is provided in an acceptable timescale and that the proportionate contribution is secured. Consequently there is a failure to comply with Policies SP3 and T13. He also agrees with the Inspector that there is a strong justification for Hillborough to contribute to Kent BRIS (IR11.95) and that it would be disproportionate to require the appellant to commit to pay all the outstanding balance now with no enforceable mechanism in place to ensure the Hillborough share is secured (IR11.96).

62. Overall, like the Inspector at IR11.100-11.101, the Secretary of State considers that the proposal would not deliver the HRR at an acceptable stage in the development by reason of the phasing programme and the timing of the contribution to Kent BRIS. He agrees that safe and suitable access to the site would not be achieved for all and the residual cumulative impact of the development would be severe through the construction phase.”

“75. Weighing in favour for the proposal is the fact that the site is allocated in the development plan and would make a significant contribution to the district’s housing land supply. The Secretary of State gives this significant weight. He also gives significant weight to the scheme’s potential contribution to housing (including affordable), as well as the benefit of accommodating the route of the HRR, a priority road scheme.

76. Weighing against the proposal, the Secretary of State gives significant weight to the delay in completing the spine road and the delay in the financial contributions towards the HRR. He gives moderate weight to the under-provision of employment land and limited weight to the loss of BMV land. The Secretary of State considers that the proposal would cause less than substantial harm to the Herne Conservation Area. He gives this harm considerable importance and weight against the proposal. In accordance with paragraph 134 of the Framework, the harm to heritage assets must be weighed against the public benefits set out above clearly outweighs the less than substantial harm to the significance of heritage assets. The Secretary of State also considers that there is harm to the setting of a listed building and affords this harm significant weight.

77. In paragraphs 15, 16, 22, 25, 35 and 39 above, the Secretary of State has set out a number of concerns relating to the affordable housing tenure split; the robustness of the planning obligation in securing 30% affordable housing; the provision of the necessary infrastructure to an acceptable timescale; and the provision of a proportionate contribution. On the basis of the material before him, he considers that these matters carry very significant weight against the appeal proposals.

78. However, before making his final decision, he wishes to give the appellant the opportunity to address these concerns via submission of a revised and agreed planning obligation. Subjected to being satisfied that these concerns can be satisfactorily addressed he is minded to allow the appeal and grant planning permission.”

“Highways Infrastructure

14. The Secretary of State concluded in paragraph 22 that the completion of the spine road by the 410 ^th dwelling was required to avoid the development having a severe impact on the capacity of the A291 and reducing highway safety for a significant period of time during construction. The Secretary of State has noted that the appellant agrees that a suitably worded condition (drafted as proposed condition 35, but numbered 34 in Annex C to this letter) could be imposed to require the spine road to be completed by the 410 ^th dwelling.

15. In paragraph 25 the Secretary of State considered that the proposal would not deliver the Herne Relief Road (HRR) at an acceptable stage in the development by reason of the phasing programme and the timing of the contribution to the Kent BRIS.

16. In the letter from Vic Hester on 17 ^th May 2018, the Unilateral Undertaking of the same date to Kent County Council is stated to secure a developer financial contribution of £2,311,000 (being proportionate contribution as agreed in the Statement of Common Ground between the local authorities and the Herne Bay strategic site developers) towards the Kent BRIS by the first occupation of the 250 ^th dwelling. It is also stated to reflect the potential for changes in the base cost of the Kent BRIS scheme by the Strode Farm owner covenanting to cover 51% of any increase in base cost above the current Strode Farm proportionate contribution upon notification of any increase by Kent County Council.

17. The Secretary of State has, however, noted that this Unilateral Undertaking is not acceptable to Kent County Council and the County Council’s position is supported by Canterbury City Council. In a letter of 2 May 2018 Kent County Council set out their position that the total cost of the KCC (Kent) BRIS is £7.692m. £3.1112m has already been secured from the Herne Bay Golf Course site through a section 106 agreement. The proposed contribution from the Strode Farm development is not the full outstanding balance which stands at £4.581m. The letter also states that without a legal agreement there is no guarantee that the KCC BRIS would be built leaving the County Council with a funding shortfall and that it has been made clear to developers that the HRR should be built at no additional cost to the County Council. Furthermore that the Secretary of State stated that the HRR was required even without the Hillborough development coming forward. The County Council stated they were prepared to sign up to an obligation to pass on any contributions towards the KCC  (Kent) BRIS secured from the Hillborough development through their respective Section 106 agreements back to the appellant.

18. In his letter of 23 March 2018, the Secretary of State also agreed with the Inspector that there was strong justification for Hillborough to contribute to the Kent BRIS and that it would be disproportionate to require the appellant to commit to pay all the outstanding balance now with no enforceable mechanism in place to ensure the Hillborough share is secured. The Secretary of State has considered the response from Kent County Council and Canterbury City Council to the Unilateral Undertaking, but does not consider that there is enforceable mechanism in place to ensure that the Hillborough share is secured. He concludes that this is a factor that weighs against allowing the appeal.”

“Overall conclusion

29. For the reasons given above, the Secretary of State considers that the appeal scheme is not in accordance with the Policies SP3, HE4 and T13 of the development plan, and is not in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

30. Weighing in favour of the proposal is the fact that the site is allocated in the development plan and would make a significant contribution to the district’s housing land supply. The Secretary of State gives this significant weight. He also gives significant weight to the scheme’s contribution to delivery of affordable housing, as well as the benefit of accommodating the route of the HRR, a priority road scheme. Furthermore the Secretary of State gives significant weight in favour to the earlier completion of the spine road and the earlier financial contributions towards the HRR than were originally proposed.

31. Weighing against the proposal, there is no enforceable mechanism in place to ensure that the Hillborough share of the Kent BRIS is secured to which the Secretary of State gives significant weight. He gives moderate weight to the under-provision of employment land and limited weight to the loss of BMV land. The Secretary of State considers that the proposal would cause less than substantial harm to the Herne Conservation Area. He gives this harm considerable importance and weight against the proposal. In accordance with paragraph 134 of the Framework, the harm to heritage assets must be weighed against the public benefits of the development. The Secretary of State considers that the combination of public benefits set out above clearly outweighs the less than substantial harm to the significant of heritage assets. The Secretary of State also considers that there is harm to the setting of a listed building and affords this harm significant weight.

32.  For the reasons gives above the Secretary of State now considers that the balance weighs in favour of the scheme. He also notes that an application for development on the Hillborough site was validated by Canterbury City Council on 16 ^th August 2017 and considers there is a reasonable prospect of this coming forward. The Secretary of State, therefore, considers that there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan and he therefore concludes that planning permission should be granted subject to the conditions set out in Annex C.”

The second case: the “Crondall case”

“The development proposed is for the demolition of the existing stable building, arena, flood lights and hard standing, and the erection of 30 residential dwellings, with associated access, landscaping and car parking arrangements.”

On the same date as the application was made, namely the 6 ^th September 2016, the Second Defendant wrote to the Interested Party, the local planning authority, recording that the Second Defendant had paid £296,914 for the following purpose:

“The Council has identified that the Development will conflict with the Habitats Regulations due to its adverse effect on the SPA as identified in the Avoidance Strategy for the Thames Basin Heaths Special Protection Area (the Strategy) and will cause adverse effects of the SPA. The Council is desirous of resolving that issue to enable a formal planning application to be submitted to the Council to enable it to be considered on its planning merits without the constraints of the Habitats Regulations requiring the application to be refused.

The Council has identified several Suitable Alternative Natural Greenspace (SANG’s) with which to mitigate the effects of the relevant development upon the SPA by utilising the space capacity of the SANG’s and the Applicant wishes to reserve that space by the payment of the contribution of £275,678 (the Contribution) upon completion hereof and upon the terms and conditions below as is identified in the Strategy. The Applicant also wishes to make a contribution of £21,236 (the SAMM Contribution) towards the Strategic Access Management and Monitoring Project Tariff Guidance (Natural England 2010).”

“RUR 2 Development in the open countryside - general

RUR 2 DEVELOPMENT IN THE OPEN COUNTRYSIDE, OUTSIDE THE DEFINED SETTLEMENT BOUNDARIES, WILL NOT BE PERMITTED UNLESS THE LOCAL PLANNING AUTHORITY IS SATISFIED THAT IT IS SPECIFICALLY PROVIDED FOR BY OTHER POLICIES IN THE LOCAL PLAN, AND THAT IT DOES NOT HAVE A SIGNIFICANT DETRIMENTAL EFFECT ON THE CHARACTER AND SETTING OF THE COUNTRYSIDE BY VIRTUE OF ITS SITING, SIZE AND PROMINENCE IN THE LANDSCAPE.

The local plan proposals map distinguishes the built up areas of towns and villages from the surrounding open countryside by means of settlement policy boundaries. The whole of the area outside these boundaries is classified as countryside.

In addition to the areas designated for their landscape or ecological value, much of the countryside of the District is of a small scale and intimate, enclosed character: this should be respected by any new development. This countryside is of strategic significance in controlling the sprawl and separating the built up areas of the Blackwater Valley Towns, Reading and Basingstoke. It is also a valuable informal recreation resource for the residents of these urban areas.

The Council's aim is to protect this countryside for its own sake by minimising the impact of new development on agricultural and forestry land, mineral resources, and areas of historic, landscape or nature conservation interest. Pressures for development are in conflict with the protection of the countryside resource, and policies of restraint are required to protect its character. Central Government guidance in Planning Policy Guidance Note 7: The Countryside and Rural Economy, emphasises that building in the open countryside, away from existing settlements or allocated areas, should be strictly controlled and that priority should be given to restraint in designated areas.

The countryside can normally accommodate some small-scale economic development without detriment, provided that it is sensitively related in design and location to the existing settlement pattern and landscape. Some diversification from strictly agricultural uses within complexes of farm buildings, for example small-scale industrial units, will be considered as part of the rural economy. Such uses will still be judged according to their impact on landscape, ecology, general amenity of the countryside and the objectives of sustainability.”

“It has come to our attention that the comment about SANG access (page 6 of the CPCs Broden Stables Objection letter, against section 8.17 of the applicants Planning & Heritage Statement) is not correct. It appears on the inspection of the Hart map that the site is actually just inside the “general” SANG area- by about 100m.

However, Hart issued some new SANG guidance in July- in section 9 on page 2 it states an order of priority, which would exclude this site as it is outside their current policy (i.e. beyond the development boundary- RUR2).

In the light of this Crondall Parish Council wishes to add an additional Comment as shown below:-

CPC notes that on more detailed inspection that the Broden Stables site is within the general SANG catchment area; hence it withdraws bullet point 5 and the comments against section 8.17 of the applicants Planning & Heritage Statement (see Annex B2 page 6) of its Letter of OBJECTION dated 03 October 2016.

However, it is noted that the site is outside the existing development boundary and therefore contrary to RUR2. In this respect the site should not have been allocated SANG land as it is outside the current policy: “SANGs allocation and delivery-procedure and advice for the Applicants, June 2016” page 2, section 9 which states: “No priority for the allocation of Council administered or managed SANG will be given to any development that does not meet these criteria. In all instances the development must be policy compliant in that it must be in accordance with the adopted policy of the Council”.”

“Whilst the Council do not share the view that policy RUR2 is out of date when it is applied to housing development in the countryside, it is recognised that all developments must be considered having regard to the policies in the Framework taken as a whole, including the need to boost significantly the supply of housing. In other words, this does not mean that what could otherwise be considered as sustainable development, which is outside of settlement boundaries, should necessarily be refused.

…

The weight to be applied to policy RUR2 should therefore be proportionate. The fact that the development of the application site conflicts with the housing policies of the development plan is a point for consideration with the next step to weigh up other material considerations and assess any harm against the benefits that would be derived from the development, taking account of the three stands of sustainable development as set out in the paragraph 7 of the NPPF.”

“ Whether having regard to the suggested benefits and disbenefits of the proposal, and the Council’s five-year supply of deliverable housing sites, it would represent a sustainable form of development

The fact that the development of this site conflicts with the policies of the development plan is a start point for consideration but one then has to weigh up the material considerations and assess any harm against the benefits that would be derived from the development, taking account of the three stands of sustainable development as set out in paragraph 7 of the NPPF.

In terms of the benefits, the scheme would deliver additional housing, both market and affordable in line with the NPPF’s aim of significantly boosting the supply of such, this benefit must be given substantial weight. The site also brings forward areas of new open space and play areas which are benefits which should also be given some weight. The Government has made clear its view that house building plays an important role in promoting economic growth. In economic terms, the schemes would provide construction jobs and some local investment during its build out. These jobs and investment would be transitory, and in this regard moderate weight should be afforded.

The scheme however would result in unacceptable harm to the character of the local area, including the nearby Conservation Area. The scheme would potentially result in harm to visually prominent tress and would potentially result in the loss of a substantial amount of hedging with no mitigation proposed to offset this harm. Furthermore the lack of a planning obligation means that there is no mechanism to secure the affordable housing, off-site highways improvements or open space mitigation.

Placing all factors and all of the relevant material considerations in the balance, the assessment is that the adverse impacts of the proposed development significantly outweigh the benefits and it is therefore unacceptable.

CONCLUSION

The proposed development would conflict with relevant development plan policies in a number of respects. The proposal would be likely to cause harm to the character of the area and setting of the Crondall Conservation Area. The proposal would be out of a poor design, taking no account of the character of the local area. The scheme would potentially result in harm to visually prominent trees and would potentially result in the loss of a substantial amount of hedging with no mitigation proposed to offset this harm. Furthermore the lack of planning obligation means that there is no mechanism to secure the affordable housing, off-side highways improvements or open space mitigation.

As such, the proposal is considered to be unacceptable. Refusal is, therefore, recommended.”

“Design

Reasons 1 and 2 relate to concerns with design issues (character, scale, layout, design and landscaping) and the effect that these have on the following:

-        The rural character of the local area and setting of the countryside and;

-        The setting of Crondall Conservation Area

There is a reference to Policy RUR2 in Reason 2. We understand that there are two parts to compliance with Policy RUR2. The first relates to the principle of development outside the settlement boundaries, and in the second relates to ensuring that development is accepted outside of these boundaries is acceptable in terms of the effect on the character and setting of the countryside. The proposed development at Broden Stables was not refused on the basis of the first part of the policy, and the Council is not opposed in principle of a residential redevelopment and the effect that it would have on the character and setting of the countryside.

Common Ground

On the basis of the contents of the Committee Report, the reasons for refusal, and discussions with officers during the course of the application, we understand that the following points are not in contention:

…

-        The application was not refused because it was outside of the settlement boundary, but because of the concerns relating to impact on the settling of the countryside (ref p.31 of the com report and Reason 2);

-        There is no objection to the principle of residential development on the site (ref. p43 of the com report and Reason 2);

…

-        The applicant has secured SANG mitigation and made a SAMM payment and would therefore not be unacceptable in terms of impact on the Thames Basin Heaths Special Protection Area (ref p. 41 of the com report).”

“Policy NBE1 Development in the Countryside

Development proposals within the countryside (defined as the area outside settlement policy boundaries) will only be supported where they are:

a) meeting the proven essential need of a rural worker to live permanently at or near their place of work; or

b) providing business floorspace to support rural enterprises (Policy ED3); or

c) providing reasonable levels of operational development at institutional and other facilities or;

d) providing community facilities close to an existing settlement which is accessible by sustainable transport modes; or

e) providing affordable housing on rural exception sites (Policy H3); or

f) providing specialist housing (Policy H4); or

g) providing a replacement dwelling or an extension to an existing dwelling; or

h) converting previously used permanent buildings or redundant agricultural buildings for appropriate uses; or

i) are for a replacement building that is not temporary in nature, or for an extension to an existing building, provided that the proposal does not require substantial rebuilding, extensions or alternation; or

j) located on suitable previously developed land appropriate for the proposed use; or

k) proposals for small scale informal recreation facilities such as interpretation centres and car parks which enable people to enjoy the countryside.”

“HDC submitted its Local Plan for Inspection on 18 ^th June 2018, thus giving it elevated weight in planning terms as a whole set of policies. Within the submitted Local Plan one of the specific policies relevant to this site (NBE1- Development in a Countryside) remains unchanged after several rounds of consultation. On page 23 of HDC’s “Summary of Responses received to the Regulation 18 consultation with the Council’s Response” (designated CD6b in the Local Plan Examination Library 2018) issued in June 2018, it considers NBE1 (listed as MG5 and renamed in that report) and has made no changes to the text of NBE1.

We have been advised by HDC that following the “Sweetman” judgement (C-323/17) additional Habitat Regulation Assessment (HRA) will be required on many extant planning applications. It is understood that this requirement also applies at this site, which currently lacks an HRA.

The Crondall Neighbourhood Plan is progressing very well, but the unexpected need for HRA and Strategic Environmental Assessments means that Reg 14 consultation is now likely to take place in August 2018.”

“As the Inspector is aware the new Framework has immediate affect in relation to Development Management. Under the previous Framework the footnote to paragraph 14 made reference to exceptions to the presumption in favour of sustainable development applying, these exceptions have been further clarified and included within the test of paragraph 11. The relevant policy within the framework is paragraph 117 (replaces paragraph 119) which relates to the presumption not applying where development requires appropriate assessment. In this instance the wording of the Framework remains largely similar, the Inspector will need to be mindful of the recent European Court Judgement People over wind and Sweetman v Coillte Teoranta .

…

By way of other updates that the Inspector should be made aware of, the Council has submitted its Emerging Plan for examination with the examination being scheduled for November/ December 2018. Following the Regulation 19 consultation, which ran between 9 February to 26 March 2018, the Hart Local Plan Strategy and Sites 2016-2032 Proposed Submission Version was submitted on 18 June 2018 to the Planning Inspector for examination. The Council is currently awaiting a date for the Local Plan Examination.”

“10. Despite representations from third parties, particularly as the Council can demonstrate a five years’ supply of deliverable housing sites, it is necessary at the outset of this appeal to consider the relevance of development plan policies, particularly those that have the effect of restricting the supply of housing. The Council draws my attention to the recent High Court decision where it was held that a countryside protection policy (in this case LP Policy RUR2) can only be considered out of date if it serves to constrain the meeting of a more recently identified need. However in this case, there is general consensus between the principle parties that the application of settlement boundaries would be inconsistent with the National Planning Policy Framework (the Framework), irrespective of the five year land supply position. The Council acknowledges that housing supply policies can at most, only attract moderate weight.

11. There is agreement between the parties that the first limb of LP Policy RUR2 in relation to it seeking to control development outside settlement boundaries does not apply in the case of this appeal and that the Council’s concern in relation to RUR 2 relates to whether the design of the development would have a deleterious effect on the character and setting of the countryside.

…

13. Neither the Draft Hart Local Plan nor the Crondall Neighbourhood Plan are at a sufficiently advanced stage to influence the outcome of this appeal and as such can be given very limited weight in my consideration of this appeal . ”

“20. Thus turning to the Council’s concerns, the focus is on the alleged overdevelopment of the site manifested by dwellings being too large for the plots, poor ratio between buildings and landscaping with hard surfacing dominating and reinforcing a feeling of being too urban, particularly given the transitional nature of the site. By contrast however, the appellant provides convincing evidence based on an analysis of plot ratios and edge of village analysis that demonstrates that the proposed scheme would not be out of kilter with other recent housing developments situated at similar edge of countryside locations in Crondall. By the same token, the reduction in the extent of hardstanding associated with a narrower combined pedestrian vehicular access road would provide a gentler design solution, which combined with the proposed landscaping, would give a more informal, softer and rural feel to the development. The dwellings have been designed to reflect local character and are attractive as a result.

21. The setting of this part of Crondall is mainly experienced by those using the public footpath to the north of Redlands Lane, from Redlands Lane itself, together with the public footpaths that run alongside the northern and eastern boundaries. There are, in addition, glimpsed views of the site from parts of Pankridge Street. However, for the most part, the appeal site is relatively self-contained and views from the ROW to the north also takes in the manicured landscape comprising the golf course, whilst from Redlands Lane itself, the views are dominated by the brownfield development of the arena and its floodlights together with the stabling and associated parking and other hard standing areas. The presence of thick mature hedgerow trees along either side and above Redlands Lane allows limited views in to the site for passing motorists. From these views I do not accept that the site performs as a transition from village to open countryside or when leaving the village from the west where in climbing away from the village, one is soon presented with the suburbanising effect created by the existing golf course, which was described in a negative and somewhat derogatory fashion in the Council’s Landscape Character Assessment (1997).

22. During my site visit, I was able to walk the ROWs described in the appellant’s Landscape Statement and Visual Study (Viewpoints 1-3, 4 and 8) and agree with these assessments although recognising the slight changes in the positioning and orientation of dwellings proposed in the appeal scheme. Moreover I would concur that the proposed development would have only localised visual effects, which would be further reduced through the landscape mitigation that is proposed. I would conclude that perceptions of the proposed development other than for a short section of the ROW to the north would be limited to a few rather glimpsed opportunities. The undulating nature of the landscape and the presence of large tracts of woodland would mean that from both medium to long views and to a degree also from closer vantage points, the appeal site itself would not be discerned in its entirety and that development would nestle in a relatively low lying area and as part of the wider village. Although taller than the new surgery complex to the west, I do not find that the scale of development would be unacceptable from the closer vantage points along Redlands Lane at this point.

23. I would therefore conclude that the development as proposed would not have a significant detrimental effect on the character and setting in the manner set out in LP Policy RUR 2 and its design in terms of scale, form, character, layout and landscaping would comply with LP Policies GEN 1, GEN 3 and GEN 4 which in combination seeks to ensure that development respects and responds to local landscape character and urban design qualities.”

“34. The Habitat Regulations 2010 require an assessment to be undertaken as to whether a proposal would be likely to have a significant effect on the interest features of a protected site. The Thames Basin Heaths Special Protection Area (SPA) is such a protected site. The assessment is required to ensure that development does not result in a likely significant effect upon designated sites. Taking account of the Habitat Regulations and Policies CON1 and CON2 of the LP it is necessary to demonstrate that all development either individually or in combination with other development which would increase the use of the Thames Basin Heath SPA for recreational and other purposes would not have a damaging impact on wildlife habitats or other natural features of importance. Policy NRM6 of the saved South East Plan requires adequate measures to avoid or mitigate any potential adverse effects on the SPA.

35. The Interim Avoidance Strategy sets out the Council's policy for mitigating the impact on the SPA and this includes seeking financial contributions towards providing compensatory measures (SANG) through the SANG Management Plan to offset that additional pressure. This site is located outside of the 400 metre exclusion zone but within the 5km zone of influence where the proposal has the potential to result in increased recreational disturbance and consequent potential adverse effects on bird species, which would require mitigation. The appellant has already made a financial contribution to the Council towards the Hitches Lane SANG and to support the Strategic Access Management and Monitoring (SAMM) project. Consequently, the Council does not object to the proposal. From the evidence, I am satisfied that such measures will suitably safeguard against adverse effects on the SPA both alone and in combination with other projects. Therefore, based on this evidence and including the SANG Management Plan, I find that the proposed mitigation would adequately address the impacts of development.

36. The proposal is therefore in accordance with the Council’s Thames Basin Heath Avoidance Strategy, LP Policies CON1 and CON2 and Policy NRM6 of the South East Plan. Consequently I am of the view that the proposal would not have an adverse effect on the integrity of the SPA, either alone or in combination with other projects, and therefore would not be contrary to the Habitat Regulations.”

“42. Section 38 (6) of the Planning and Compulsory Purchase Act 2004 requires applications for planning permission to be determined in accordance with the development plan unless other material planning considerations indicate otherwise. Being outside the settlement boundary, the proposals are not in accordance with the development plan taken as a whole.

43. However, although the appeal site falls outside the settlement boundary for Crondall, through the application of the assessment set out in paragraph 213 of the Framework negatively worded policies that seek to apply a considerably more restrictive approach by preventing development outside settlement boundaries can reasonably be considered out-of-date and I can only attach at best moderate weight to their application (in this case the first element of RUR2). I agree with the appellants that the first part of LP Policy RUR2 has ceased to serve a useful planning purpose for the determination of housing applications in the District, which is consistent with the findings of Inspector Gleeson in the Netherhouse Copse appeal. In any event, whilst the Council can demonstrate a 9 years supply of deliverable housing sites, paragraph 59 of the Framework maintains that it is the Government’s stated objective to significantly boost the supply of housing.

44. That said, the second limb to LP Policy RUR2 is of relevance as is Policy CON13 and I afford significant weight to relevant aspects of these policies. However, I have found that the proposals would not have a significant detrimental effect on the character and setting of the countryside at this location or the setting of the Conservation Area. Paragraph 68 of the Framework clearly sets out that small and medium sized sites can make an important contribution to meeting the housing requirements of an area and that local planning authorities should support the development of windfall sites and give great weight to the benefits of using suitable sites within existing settlements. The Council, by its own admission, confirms that the appeal site is relatively sustainable. Whilst the proposed development is partly in conflict with LP Policy RUR2, it would supply 30 no. of dwellings at a site which is visually and functionally well located to the village and include 40% of much needed affordable housing in an area of high housing demand. Along with the provision of on-site open space and provision of a financial contribution towards off-site public open space facilities, I find that these comprise a substantial social benefit.

45. Balanced against the identified conflict with the development plan, these matters carry significant weight in the context of paragraph 59 of the Framework which states that to support the Government’s objective of significantly boosting the supply of homes, it is important that a sufficient amount and variety of land can come forward where it is needed, that the needs of groups with specific housing requirements are addressed and land developed without unnecessary delay.

46. Furthermore I am satisfied that the development will fulfil the aims of the Framework by promoting a high quality design of new homes and places. In addition, where harm has been identified, in terms specifically to the SPA, this has been demonstrated to be fully mitigated. Together with the identified ecological mitigation and flood mitigation, I apportion moderate measures of weight in terms of the environment.

47. I have attached moderate weight in terms of the economic benefits that would ensue from the development, including the New Homes Bonus and a boost to the local economy both during the construction period and thereafter from the spending power from 30 no. new households within the local area.

48. Taking all of this into account, including all other material considerations, I find that the adverse impacts of granting planning permission would not significantly and demonstrably outweigh the benefits of the proposed development when assessed against the policies in the Framework as a whole and that the proposal represents sustainable development. On this basis a decision, other than in accordance with the development plan is justified and therefore the appeal should be allowed.”

“63. In the current appeal the Council argued that it can provide five years supply of housing land. However, this is a reflection of the Council granting a number of permission for housing development right outside of settlement boundaries identified in the LP in breach of Policies RUR2 and RUR3 in order to meet market and affordable housing needs and maintain a rolling five year land supply. Consequently it is not meeting current housing needs on the basis of the settlement boundaries in the development plan. I therefore find that Policy RUR1 is out-of-date and carries only moderate weight.

64. Policy RUR2 is similarly dependent upon the out-of-date settlement boundaries of RUR1. Notwithstanding the Council’s revised assessment that Policy RUR2 has a high degree of consistency with the Framework, and irrespective that it is negatively expressed, it relates to out-of-date settlement boundaries established by Policy RUR1 and therefore is also out-of-date. Policy RUR3 also relies on the out-of-date settlement boundaries associated with Policy RUR1 and therefore I attached moderate weight to these policies too.”

“3.1. The following key principles set out the overarching context for the recommendations within this Delivery Framework.

-        All net new residential development- when considered either along or in combination within other plans and projects – is likely to have a significant effect on the SPA and should therefore provide or contribute to the provision of avoidance measures.

-        Developments can provide – or make a contribution to the provision of -  measures to ensure that they have no likely significant effect on the SPA. In doing so, residential development will not have to undergo an appropriate assessment. The option remains for developers to undertake a Habitats Regulations screening assessment and where necessary a full appropriate assessment to demonstrate that a proposal will not adversely affect the integrity of the SPA.

-        A three prong approach to avoiding likely significant effect on the SPA is appropriate, however this framework focuses on the two prongs of SANG (Sustainable Alternative Natural Greenspace) and access management, which the JSPB currently considers are the most appropriate avoidance measures.

-        This Framework sets out the JSPB’s recommended approach to the provision of avoidance measures. Its key objective is to recommend consistent standards for the application and provision of avoidance measures. However, as a strategic document it cannot address every foreseeable circumstance. It is acknowledged that there may be some exceptional circumstances where local authorities consider that a more or less prescriptive approach needs to be taken, or great local specificity is needed, in the light of local circumstances or evidence base, or the detail of the proposed new residential development. Such circumstances should be carefully justified.”

“177. The presumption in favour of sustainable development does not apply where development requiring an Appropriate Assessment because of its potential impact on a habitat site is being planned or determined.”

It will also be recalled that “the presumption in favour of sustainable development” is derived from paragraph 11 of the 2018 Framework. In relation to decision-taking at paragraph 11(d), in certain circumstances, including where a relevant development plan policy is out-of-date, a so-called tilted balance applies. When the tilted balance is to be applied it means that permission should be granted unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework as a whole”. By virtue of paragraph 177 of the 2018 Framework (and paragraph 11(d)(i)) this tilted balance cannot be applied where development requires Appropriate Assessment.

“Natural England advise planning applications resulting in an increase in the number of dwellings within 5km of the SPA are, without “avoidance measure”, likely to have a significant effect on the SPA within the meaning of the Habitat Regulations”

The Law in relation to Appropriate Assessments

“2. Member states shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which disturbance could be significant in relation to the objectives of this Directive.

3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

“AG105 The authorisation threshold laid down in the second sentence of Art.6(3) of the habitats directive is capable of preventing adverse effects on sites. No less stringent means of attaining this objective with comparable certainty is evident. There could be doubts only as regards the relationship between the authorisation threshold and the protection of the site which can be achieved thereby.

…

“39. According to the first sentence of Art.6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site but likely to have significant effect thereon, either individually or in combination with other plans or projects, is to be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives.

40. The requirement for an appropriate assessment of the implications of a plan or project is thus conditional on its being likely to have a significant effect on the site.

“39. Consequently, it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of article 6(3) of the Habitats Directive the sites needs to be preserved at a favourable conservation status; this entails, as the Advocate General has observed in her points 54-56 of her opinion above, the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of SCIs, in accordance with the Directive.

40. Authorisation for a plan or project, as referred to in article 6(3) of the Habitats Directive, may therefore be given only on condition that the competent authorities- once all aspects of the plan or project have been identified which can, by themselves or in combination with other plans or projects, affect the conservation objectives of the site concerned, and in the light of the best scientific knowledge in the field- are certain that the plan or project will not have lasting adverse effects on the integrity of the site. That it so where no reasonable scientific doubt remains as to the absence of such effects: see European Commission v Spain (Case C-404/09), para 99 and Solvay’s case, para 67.

41. It is to be noted that, since the authority must refuse to authorise the plan or project being considered where uncertainty remains as to the absence of adverse effects on the integrity of the site, the authorisation criterion laid down in the second sentence of article 6(3) of the Habitats Directive integrates the precautionary principle and makes it possible to prevent in an effective manner adverse effects on the integrity of projected sites as a result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not ensure as effectively the fulfilment of the objective of site protection intended under that provision: the Landelijke Vereniging case [2004] ECR 1-7405, paras 57 and 58.

…

43. The competent national authorities cannot therefore authorise interventions where there is a risk of lasting harm to the ecological characteristics of the sites which host priority natural habitat types. That would particularly be so where there is a risk that an intervention of a particular king will bring about the disappearance or the partial irreparable destruction of a priority natural habitat type present on the site concerned: see, as regards the disappearance of priority species: European Commission v Spain (Case C-308/08) [2010] ECR 1-4281, para 21 and European Commission v Spain (Case C-404) [2011] ECR 1-11853, para 163.

44. So far as concerns the assessment carried out under article 6(3) of the Habitats Directive, it should be pointed out that it cannot have a lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned: see European Commission v Spain (Case C-404/09), para 100 and the case law cited. It is for the national court to establish whether the assessment of the implications for the site meets these requirements.”

“34. As regards to the second condition, it is settled case law that article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that the plan or project in question will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned: European Commission v Kingdom of Belgium (Case C-538/09) EU:C:2011:349, para 39 and the case law cited. The assessment of that risk must be made in light, inter alia, of the characteristics and specific environmental conditions of the site concerned by such a plan or project: see the Orleans case, para 45 and the case law cited.

35. As the Applicants and the European Commission submit, the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.

36. The conclusion is supported by the fact that a full and precise analysis of the measures capable of avoiding or reducing any significant effects on the site concerned must be carried out not at the screening stage, but specifically at the stage of the appropriate assessment.

37. Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitat Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the Directive.

“55. …It leaves it open to court to take the view, by relying “on evidence provided by the developer or the competent authorities and, more generally, on the case file documents submitted to that court” that the contested decision “would not have been different without the procedural defect invoked by that applicant”. In making that assessment it should take account of “the seriousness of the defect invoked” and the extent to which it has deprived the public concerned of the guarantees designed to allow access to information and participation in decision-making in accordance with the objectives of the EIA Directive.

56. Judged by those tests I have no doubt that we should exercise our discretion to refuse relief in this case. In para 52 of its judgment, the Court of Appeal summarised the factors which in its view entitled the authority to conclude that applying the appropriate tests, and taking into account the agreed mitigation measures, the proposal would not have significant effects on the SAC. That, admittedly, was in the context of its consideration whether the committee arrived at a “rational and reasonable conclusion”, rather than the exercise of discretion. However, there is nothing to suggest that the decision would have been different had the investigations and consultations over the preceding year taken place within the framework of the EIA Regulations.

60. This was not a case where the environmental issues were of particular complexity or novelty. There was only one issue of substance: how to achieve adequate hydrological separation between the activities on the site and the river. It is a striking feature of the process that each of the statutory agencies involved was at pains to form its own view of the effectiveness of the proposed measures, and that final agreement was only achieved after a number of revisions. It is also clear from the final report that the public were fully involved in the process and their views were taken into account. It is notable also that Mr Champion himself, having been given the opportunity to raise any specific points of concern not covered by Natural England before the final decision, was unable to do so. That remains the case. That is not to put the burden of proof onto him, but rather to highlight the absence of anything of substance to set against the mass of material going the other way.

61. For completeness I should mention that, in his written submissions to this court, Mr Buxton attempted to rely on a witness statement which had been prepared for the High Court in support of an additional ground relating to failure to consider cumulative effects of “incremental development” at the site over many years. This he suggests can be used as “evidence… that it is at least possible that… lawful screening might produce a different substantive result”. However, as he accepts, this ground, and the evidence in support, were not admitted to the High Court. This court can only proceed on the evidence properly before it.”

The Domestic Law Involved in Each Case

“In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that all cases must decide alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgement of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases must be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way I am necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborated.”

“41. In the particular circumstances of this case, Mr Kimblin submitted:

(i) that the facts that policies HS22 and HS24 appeared in a Local Plan for the period 1991-2006, long in the past, and were tied into the Stricture Plan (in particular, in relation to policy HS24, as set out in the explanatory text at para.4.97 of the Local Plan), which is now defunct, meant that very reduced weight should be accorded to them;

(ii) that the Local Plan in relation to housing supply, which include policies HS22 and HS24, are “broken” and so again should be accorded little weight; and

(iii) that policies HS22 and HS24 have been superseded by more recent guidance, in the form of the NPPF para.47, and so should be regarded as being outdated in the matter explained by Lord Cylde in Edinburgh CC.

I do not accept these submissions.

42. As to (i), policies HS22 and HS24 were saved in 2007 as part of a coherent set of Local Plan polices judges to be appropriate for the Council’s area pending work to develop new and up-to-date policies. There was nothing odd or new-fangled in the inclusion of those policies in the Local Plan as originally adopted in 1997. It is a regular feature of development plans to seek to encourage residential development in appropriate centres to preserve the openness of the countryside, and policies HS22 and HS24 were adopted to promote those objectives. Those objectives remained relevant and appropriate when the policies were saved in 2007 and in general terms one would expect that they remain relevant and appropriate today. At any rate, that is something which needs to be considered by the planning inspector when the case is remitted, along with the question of the consistency of those policies with the range of policies in the NPPF under the exercise required by the NPPF para.215. The fact that the explanatory text for policy HS24 refers to the Structure Plan does not detract from this. It is likely that the Structure Plan itself was formulated to promote those underlying general objectives and the fact that it has now been superseded does not mean that those underlying objectives have suddenly ceased to exist. As the Judge observed at [49]:

“Some planning policies by their very nature continue and are not ‘time-limited’, as they are re-stated in each iteration of planning policy, at both national and local levels.”

43. As to (ii), the metaphor of a plan being “broken” is not a helpful one. It is a distraction from examination of the issues regarding the continuing relevance of policies HS22 and HS24 and their consistency with the policies in the NPPF. As Mr Kimblin developed this submission, it emerged that what he meant was that it appears that the Council has granted planning permission for some other residential developments in open countryside, i.e. treating policy HS24 as outweighed by other material circumstances in those cases, and that it relies on those sites with planning permission, among others, in order to show that it has a five-year supply of deliverable residential sites for the purposes of the NPPF para.47 (second bullet point) and para.49. Mr Kimblin says that it shows that the saved policies of the Local Plan, if applied with full rigour and without exceptions, would lead the Council to fail properly to meet housing need in its area, according to the standard laid down in the NPPF paras 47 and 49. Therefore, he says, no or very reduced weight should be accorded to policies HS22 and HS24.

44. In my view, this argument is unsustainable. We were shown nothing by Mr Kimblin to enable us to understand why the Council has decided to grant planning permission for development of these other sites. So far as I can tell, the Council granted planning permission in these other cases in an entirely conventional way, being persuaded on the particular facts that it would be appropriate to treat material considerations as sufficiently strong to outweigh policy HS24 in those specific cases. Having done so, there is no reason why the Council should not bring the contribution from those sites into account to show that it has the requisite five-year supply of sites for housing when examining whether planning permission should be granted on Glandman’s application for the site in the present case. The fact that the Council is able to show that with current saved housing policies in place it has the requisite five-year supply tends to show that there is no compelling pressure by reason of unmet housing need which requires those policies to be overridden in the present case; or- to use Mr Kimblin’s metaphor- it tends positively to indicate that the current policies are not “broken” as things stand at the moment, since they can be applied in this case without jeopardising the five-year housing supply objective. In any event, an assessment of the extent of the consistency of policies HS22 and HS24 with the range of policies in the NPPF is required, as set out in the NPPF para.215, before any conclusion can be drawn whether those policies should be departed from in the present case.

Conclusions in the Canterbury Case

Conclusions in relation to the Crondall Case

“As the draft Local Plan has not been examined, only limited weight would be attributed to it at this stage.”

In my view it was clearly open to the Inspector to conclude, in accordance with paragraph 216 of the 2012 Framework, that the stage of preparation of the emerging plan was sufficient in and of itself to justify the conclusion, shared with the Interested Party, that only limited weight could be afforded to the emerging Local Plan. His reasons adequately explain this conclusion and in my judgment, there is no substance in grounds 7 and 8 of CPC’s claim.

“SPA/SANG

-        Harm to SPA

-        SANG is insufficient for following reasons:

-        **Not accessible location as on edge of the village, there are no safe walking routes to SANG, there are limited access points and there is no car park.

…

-        No sufficient alternative to SPA so people will still use SPA.”

Again, the detail of these objections which bear some relation to the evidence provided by Mr Dorn, are not addressed either in the officer’s report or in the Inspector’s decision. In the absence of an Appropriate Assessment procedure (accompanied by consultation) Mr McCracken submits that it is not possible for the court to be certain in relation to the outcome of the decision. Furthermore, the application of the wrong version of the planning balance reinforces the contention that it is not possible to be certain that the decision would have been the same had the correct planning balance been applied in the light of the need for Appropriate Assessment.